Electronic copy available at: http://ssrn.

com/abstract=1945741
HERE, THERE AND EVERYWHERE:
HUMAN DIGNITY IN CONTEMPORARY LAW AND IN THE TRANSNATIONAL
DISCOURSE

LUS ROBERTO BARROSO
1

ABSTRACT: Over the past several decades, human dignity has become an omnipresent idea in
contemporary law. This Article surveys the use of human dignity by domestic and international
courts and describes the concepts growing role in transnational discourse, with special attention
paid to the case law of the United States Supreme Court. The Article then examines the legal
nature of human dignity, finding it to be a constitutional principle rather than a freestanding
fundamental right, and develops a unifying and universal identity for the concept. At its core,
human dignity contains three elements - intrinsic value, autonomy and community value - and
each element has unique legal implications. The Article then considers how this elemental
approach to human dignity analysis can assist in structuring legal reasoning and justifying
judicial choices in hard cases, such as abortion, same-sex marriage and assisted suicide.

SUMMARY
I. INTRODUCTION
II. HUMAN DIGNITY IN CONTEMPORARY LAW
A. Origin and Evolution

1
Visiting Scholar, Harvard Law School (2011). Master of Laws (LL.M), Yale Law School. Doctor of Laws (SJD)
and Professor of Constitutional Law, Rio de Janeiro State University (UERJ). Visiting Lecturer, University of
Poitiers, France, University of Wroclaw, Poland, and University of Braslia (UnB), Brazil. I am grateful to Robert
Post, Roberto Mangabeira Unger and Paulo D. Barrozo for their support and suggestions. I am also indebted to
Maggie Francis, Pooja Nair and Eduardo Mendona for excellent research assistance.
Electronic copy available at: http://ssrn.com/abstract=1945741
2
B. Comparative Law, International Law and Transnational Discourse
1. Human Dignity in the Constitutions and Judicial Decisions of Different Countries
2. Human Dignity in International Documents and Case Law
3. Human Dignity in the Transnational Discourse
C. Human Dignity in the United States
D. Arguments Against the Use of Human Dignity as a Legal Concept
III. LEGAL NATURE AND MINIMUM CONTENT OF HUMAN DIGNITY
A. Human Dignity as a Legal Principle
B. The Influence of Kantian Thought
C. Minimum Content of the Idea of Human Dignity
1. Intrinsic Value
2. Autonomy
3. Community Value
IV. USING HUMAN DIGNITY TO STRUCTURE LEGAL REASONING IN HARD CASES
A. Abortion
B. Same Sex Marriage
C. Assisted Suicide
V. CONCLUSION
3

I. INTRODUCTION

In France, Mr. Wackeneim wanted to participate in a show known as
dwarf tossing, in which nightclub patrons would try to heave a dwarf the furthest distance
possible. In the United Kingdom, Mrs. Evans, after losing her ovaries, wanted to insert into her
uterus embryos fertilized with her own eggs and semen from her ex-husband, whom she had
divorced. In Italy, the family of Mrs. Englaro wanted to suspend medical treatment and let her die
peacefully after seven years in a vegetative coma. In Brazil, Mr. Ellwanger wanted to publish
books denying the existence of the Holocaust. In the United States, Mr. Lawrence wanted to have
intimate relations with a same-sex partner without being considered a criminal. In Colombia,
Mrs. Lais wanted to have her right to work as a sex professional, also referred to as prostitution,
officially recognized. In Germany, Mr. Grndgens wanted to prevent the republication of a book
based on the life of his father, which he considered offensive to his fathers honor. In South
Africa, Mrs. Gootboom, living in extremely miserable conditions, demanded from the state a
shelter for her and her family. In France, the young Mr. Perruche sought compensation for having
been born, that is, for not having been aborted, because a prenatal diagnostic error left unforeseen
a severe risk of physical and mental lesions, and he was born with these impairments.

All of these real cases, decided by high courts throughout the world, have
one trait in common: underlying the decision in each one, in express or implicit fashion, was the
meaning and scope of the idea of human dignity. In recent decades, human dignity has become
one of the Western Worlds greatest examples of ethical consensus, mentioned in countless
international documents, national constitutions, legal statutes and judicial decisions. On the
4
abstract level, few ideas have had the ability to garner so much spirited and unanimous
concurrence. However, in practical terms, dignity as a legal concept frequently functions merely
as a mirror in which each person projects his or her own values. It is not by chance that human
dignity is invoked throughout the world by opposing sides in such matters as abortion,
euthanasia, assisted suicide, same-sex marriage, hate speech, cloning, genetic engineering, sex-
change operations, prostitution, decriminalization of drugs, the shooting down of hijacked
aircrafts, protection against self-incrimination, the death penalty, life imprisonment, use of lie
detectors, hunger strikes, and enforcement of social rights. The list is endless.

In the United States, references to human dignity in the Supreme Courts
case law trace back to the 1940s. Use of the concept in American law, however, has been
episodic and underdeveloped,
2
relatively incoherent and inconsistent,
3
and lacking in sufficient
specificity and clarity.
4
Regardless, there has been a clear and noticeable trend in recent years, in
which courts have employed the idea of human dignity in cases involving fundamental rights
such as the right to privacy and equal protection, the prevention of unconstitutional searches and
seizures, or cruel and unusual punishment, and the right to die.
5
Embracing an expanded idea
of human dignity as the grounding for the United States Bill of Rights has been hailed as a
qualitative leap by an array of distinguished authors,
6
but this view is not unanimous. In the

2
Vicki C. Jackson, Constitutional Dialogue and Human Dignity: States and Transnational Constitutional Discourse,
65 MONT. L. REV. 15 (2004) [hereinafter Jackson].
3
Neomi Rao, On the Use and Abuse of Dignity in Constitutional Law, 14 COLUM. J. EUR. L. 201 (2007-2008)
[hereinafter Rao].
4
Gerald L. Neuman, Human Dignity in United States Constitutional Law, in ZUR AUTONOMIE DES INDIVIDUUMS 250
(Dieter Simon & Manfred Weiss ed., 2000) [hereinafter Neuman].
5
See generally Maxima D. Goodman, Human Dignity in Supreme Court Constitutional Jurisprudence, 84 NEB. L.
REV. 740 (2005-2006) [hereinafter Goodman].
6
See, e.g., Laurence Tribe, Larry Tribe on Liberty and Equality, http://balkin.blogspot.com/2008/05/larry-tribe-on-
liberty-and-equality.html (The strategy that for me promises the greatest glimpse of the infinite is a strategy that
5
Courts and the academy, voices such as those of Justice Antonin Scalia or Professor James
Whitman have fiercely disputed the role of human dignity in constitutional interpretation and in
legal reasoning generally, and have challenged its necessity, convenience and constitutionality.
7

Moreover, some have looked with distaste, and even horror, at the mere possibility of resorting to
foreign materials on human dignity to establish a shared common view on its meaning.
8


The ideas that follow are based on the assumption that human dignity is a
valuable concept with growing importance in constitutional interpretation, and that it can play a
central role in the justification of decisions involving morally complex issues. It is past time to
render dignity a more substantive concept in legal discourse, where it has often served merely as
a rhetorical ornament, a vessel of convenience for unrelated cargo. With that in mind, this Article
attempts to accomplish three main objectives. The first is to show the importance of the notion of
human dignity in domestic and international case law, as well as in transnational discourse.
9
I will
argue that the United States, although still timidly, has joined this trend, and that there is no
reason why it should not. The second objective is to identify the legal nature of human dignity
fundamental right, absolute value or legal principle? and to establish its minimum content,
which I argue is comprised of three elements: the intrinsic value of every human being,
individual autonomy and community value. My purpose is to determine the legal implications

resists rigid compartmentalization and that reaches across the liberty/equality boundary to recognize the ultimate
grounding of both in an expanding idea of human dignity).
7
See, e.g., James Q. Whitman, The Two Western Cultures of Privacy: Dignity versus Liberty, 113 YALE L. J. 1151 ,
1160, 1221 (2004) [hereinafter Whitman].
8
See, e.g., Richard Posner, No Thanks, We Already Have Our Own Laws, LEGAL AFFAIRS, July/August 2004
(claiming that using foreign decisions even in a limited way undermines the court system and reduces judicial
influence).
9
By transnational discourse I mean courts from one country making reference to decisions of courts of a different
country.
6
associated with each element, i.e., the fundamental rights, resposibilities and duties that they
entail. The third and last objective is to show how establishing human dignitys legal nature and
minimum content can be useful in structuring legal reasoning in hard cases. I use as examples to
confirm my central argument the cases of abortion, gay marriage and assisted suicide.


II. HUMAN DIGNITY IN CONTEMPORARY LAW

A. ORIGIN AND EVOLUTION

In one line of development, which dates back to classical Rome, crosses
the Middle Ages and comes all the way to the advent of the liberal state, dignity dignitas was
a concept associated with the personal status of some individuals or with the prominence of
certain institutions.
10
As for personal status, dignity represented the political or social rank
derived primarily from the holding of some public offices, as well as from general recognition of
personal achievements or moral integrity.
11
The term was also used to qualify some institutions,
such as the sovereign, the crown or the state, in reference to the supremacy of their powers.
12
In
either case, dignity entailed a general duty of honor, respect and deference owed to those
individuals and institutions worthy of it, an obligation whose infringement could be sanctioned

10
Christopher McCrudden, Human Dignity and Judicial Interpretation of Human Rights, 19 EURO. J. INTL L. 655,
657 (2008) [hereinafter McCrudden].
11
Izhak Englard, Human Dignity: From Antiquity to Modern Israels Constitutional Framework, 21 CARDOZO L.
REV. 1903, 1904 (1999-2000).
12
See, e.g., Jean Bodin, LES SIX LIVRES DE LA RPUBLIQUE 144 (1593). There is an English version at
http://www.constitution.org/bodin/bodin_4.txt.
7
with criminal and civil remedies.
13
Thus, in Western culture, the first meaning attributed to
dignity, as used to categorize individuals, pressuposed a hierarchical society and was linked to a
superior status, a higher rank or position. In many ways, dignity was equivalent with nobility,
implying special treatment and distinct rights and privileges. Based on these premises, it does not
seem accurate to understand the contemporary idea of human dignity as a historical development
of the Roman concept of dignitas hominis. The current notion of human dignity did not supersede
the old one, but it is rather the product of a different history, which ran parallel to the origins
discussed above.

As it is currently understood, human dignity relies on the assumption that
every human being has intrinsic worth. Multiple religious and philosophical theories and
conceptions seek to justify this metaphysical view. The long development of the contemporary
view of human dignity, starting with classical thought,
14
has as landmarks the Judeo-Christian
tradition, the Age of Enlightenment and the aftermath of World War II. Under a religious
perspective, the central ideas that are in the core of human dignity can be found in the Old
Testament, the Hebrew Bible: God created mankind in his own image and likeness
15
and imposed
on each person the duty to love his neighbor as himself.
16
These statements are repeated in the
Christian New Testament.
17
As for the philosophical origins of human dignity, Roman statesman

13
CHARLOTTE GIRARD & STPHANIE HENNETTE-VAUCHEZ, LA DIGNIT DE LA PERSONNE HUMAINE: RECHERCHE
SUR UN PROCESSUS DE JURIDICISATION [HUMAN DIGNITY: SURVEY ON A JUDICIALIZATION PROCESS] 24 (2005)
[hereinafter Girard & Hennette-Vauchez].
14
See Marcus Tulius Cicerus in his treatise De Officis (On Duties), from 44 BC (1.30.105-107). See full text in
English, translated by Walter Miller (1913) at http://www.constitution.org/rom/de_officiis.htm.
15
Genesis 1:26 and 1:27.
16
Leviticus 19:18.
17
Ephesus 4:24 and Mathew 22:39. Due to its major influence over Western civilization, many authors emphasize
the role of Christianity in the shaping of what came to be identified as human dignity. See, e.g., Christian Starck,
8
Marcus Tullius Cicero was the first author to employ the expression dignity of man associated
with reason and the capacity for free moral decision.
18
With Pico della Mirandola, in 1486, the
ratio philosophica started to depart from its subordination to the ratio theologica.
19
Spanish
theologian Francisco de Vitoria
20
and German philosopher Samuel Pufendorf
21
added major
contributions to the subject. It was with the Enlightenment, though, that came the centrality of
man, along with individualism, liberalism, the development of science, religious tolerance and
the advent of a culture of individual rights. Only then was the quest for reason, knowledge and
freedom able to break through the thick wall of authoritarianism, superstition and ignorance that
the manipulation of faith and religion had built around medieval societies.
22
One of
Enligthenments foremost representatives was Immanuel Kant, who defined it as mankinds exit
from its self-imposed immaturity.
23



The Religious and Philosophical Background of Human Dignity and Its Place in Modern Constitutions, in THE
CONCEPT OF HUMAN DIGNITY IN HUMAN RIGHTS DISCOURSE (David Kretzmer and Eckart Klein) 181 (2002).
18
See supra note 14 and Hubert Cancik, Dignity of Man and Persona in Stoic Anthropology: Some Remarks on
Cicero, De Officis I 105-107, in David Kretzmer and Eckart Klein, THE CONCEPT OF HUMAN DIGNITY IN HUMAN
RIGHTS DISCOURSE 20-21(2002), at 27 [hereinafter Kretzmer & Klein].
19
His famous speech Oratio de Hominis Dignity (Oration on the Dignity of Man) is considered to be the founding
manifesto of the humanist Renaissance. See Pico della Mirandola, Oratio de Hominis Dignitate
(http://www.wsu.edu:8080/~wldciv/world_civ_reader/world_civ_reader_1/pico.html).
20
Francisco de Vitoria (1492-1546) was known for his fierce defense of the rights of Indians against the colonists in
the New World. See EDWIN WILLIAMSON, THE PENGUIN HISTORY OF LATIN AMERICA 64-65 (2009).
21
Samuel von Pufendorf (1632-1694) was a precursor to the Enlightenment and a pioneer in the secular conception
of human dignity, which he founded on moral freedom. See De officio hominis et civis juxta legem naturalem libri
duo, of which an English version On The Duty of Man and Citizen According to the Natural Law (1673) can be
found at http://www.lonang.com/exlibris/pufendorf/index.html.
22
On Enlightenment, see generally PETER GAY, 2 THE ENLIGHTENMENT: AN INTERPRETATION (1977) [hereinafter
Gay]; PAUL HAZARD, EUROPEAN THOUGHT IN THE EIGHTEENTH CENTURY (J. Lewis May, trans, Yale Univ. Press);
and ERNST CASSIRER, THE PHILOSOPHY OF THE ENLIGHTENMENT (1960) (Fritz C.A. Koelln and James P. Pettegrove,
trans, The University Press).
23
Immanuel Kant, An Answer to the Question: What is Enlightenment?, in WHAT IS ENLIGHTENMENT? 58, 62-63
(James Schmidt ed., 1996).
9
Along with the religious and philosophical landmarks identified so far,
there is a striking historical landmark that was decisive in the modeling of the current notion of
human dignity: the horrors of national socialism and fascism, and the reaction they elicited in the
aftermath of World War II. In the reconstruction of a world morally devastated by totalitarianism
and genocide, human dignity was incorporated into the political discourse of the winners as the
grounds for a long-awaited era of peace, democracy and protection of human rights. Human
dignity was imported into the legal discourse due to two main factors. The first was the inclusion
in several international treaties and documents, as well as in several national constitutions, of
express language referring to human dignity. The second factor corresponds to a more subtle
phenomenon, which became increasingly visible over time: the rise of a post-positivist legal
culture that re-approximated law with moral and political philosophy, attenuating the radical
separation imposed by pre-war legal positivism.
24
In this renovated jurisprudence, where
interpretation of legal norms is strongly influenced by social facts and ethical values, human
dignity plays a prominent role. This is, thus, a very brief sketch of the religious, philosophical,
political and legal trajectory of human dignity toward its contemporary meaning.

B. COMPARATIVE LAW, INTERNATIONAL LAW AND TRANSNATIONAL DISCOURSE

1. Human Dignity in the Constitutions and Judicial Decisions of Different Countries


24
In Europe, and particularly in Germany, the reaction against positivism started with Gustav Radbruchs article
Fnf Minuten Rechtsphilosphie [Five Minutes of Legal Philosophy] (1945), which was very influential in shaping
the jurisprudence of values that enjoyed prestige in the aftermath of the war. In the Anglo-Saxon tradition, John
Rawls A Theory of Justice (1971) has been regarded as a milestone in bringing elements of ethics and political
philosophy into jurisprudence. Ronald Dworkins general attack on positivism in his article The Model of Rules, 35
U. CHICAGO L. REV. 14, 17 (1967) is another powerful example of this trend. In Latin America, Carlos Santiago
Ninos book The Ethics and Human Rights (1991) is also very representative of the post-positivist culture.
10
Human dignity is a concept found in most constitutions written after World
War II.
25
It is generally recognized that the rise of dignity as a legal concept owes its origins most
directly to German constitutional law. In fact, based on provisions of the Fundamental Law of
1949, which declare that human dignity shall be inviolable (Art. 1.1) and establish a right to the
free development of the personality (Art. 2.1), the German Constitutional Court has developed
a body of law and doctrine that have influenced case law and scholarship throughout the world.
26

According to the Court, human dignity is at the very top of the constitutional system, representing
a supreme value, an absolute good in light of which every provision must be interpreted.
27

Regarded as the foundation for all basic rights,
28
the dignity clause has both subjective and
objective dimensions, empowering individuals with certain rights and imposing affirmative
obligations on the state.
29
On various occasions, the Court has emphasized that the image of man
in the Fundamental Law involves a balance between the individual and the community.
30
Based
on this understanding of human dignity, the German Constitutional Court has developed a broad
and varied case law that includes: the definition of the scope of the right of privacy regarding
protection from both state
31
and private
32
interference; prohibition of holocaust denial;
33


25
This includes, among others, the constitutions of Germany, Italy, Japan, Portugal, Spain, South Africa, Brazil,
Israel, Hungary and Sweden. Some countries, such as Ireland, India and Canada, reference human dignity in the
preambles of their constitutions.
26
See Dieter Grimm, Die Wrde des Menschen ist unantastbar (The Human Dignity is Inviolable), in 24 KLEINE
REIHE (2010) [hereinafter Grimm].
27
Bundesverfassungsgerich [BVerfG], [Federal Constitutional Court] 1969, 27 Entscheidungen des
Bundesverfassungsgerich [BVerfGE] 1 (Microsensus Case); and 30 BVerfGE 173 (1971) (Mephisto Case). This
absolute character of human dignity has been object of growing dispute, but is still the dominant view in the Court.
See Grimm, supra note 26, at 5.
28
30 BVerfGE 173 (1971) (Mephisto Case).
29
DONALD P. KOMMERS, THE CONSTITUTIONAL JURISPRUDENCE OF THE FEDERAL REPUBLIC OF GERMANY 312
(1997) [hereinafter Kommers].
30
4 BVerfGE 7, 15-16 (1954). See the translation at Kommers, supra note 29, at 305.
31
27 BVerfGE 1 (1969) (Microsensus Case).
32
30 BVerfGE 173 (1971) (Mephisto Case).
11
prohibition of the shooting down of aircrafts seized by terrorists;
34
and a declaration that it is
unconstitutional for the state to decriminalize abortion (Abortion I case),
35
a decision that was
subsequently revised to allow for more flexibility in the regulation of abortion (Abortion II
case).
36


In France, it was not until 1994 that the Constitutional Council, combining
different passages of the Preamble to the 1946 Constitution, proclaimed that dignity was a
principle of constitutional status.
37
French commentators, more or less enthusiastically, have
referred to human dignity as a necessary underlying element to all of French positive law,
38
as
both a founding and normative concept
39
and as the philosophers stone of fundamental rights.
40

Since then, the principle of human dignity has been invoked in different contexts, from the
declaration that decent housing for everyone is a constitutional value
41
to the validation of
statutes permitting abortion until twelve weeks of pregnancy.
42
More recently, the Constitutional

33
90 BVerfGe 241 (1994). See Winfried Brugger, Ban on Or Protection of Hate Speech? Some Observations Based
on German and American Law, 17 TUL. EUR. & CIV. L. F. 1 (2002).
34
BVerfG, 1 BvR 357/05.
35
39 BVerfGE 1 (1975). In this decision, the Court ruled that the right to life and the duty of the state to protect that
right require the criminalization of abortion. Consequently, the Court declared unconstitutional a law decriminalizing
first-trimester abortion.
36
88 BVerfGE 203 (1993). In this decision, the Court reiterated the states duty to protect the unborn, but admitted
that some restrictions on abortion could violate womens dignity. After the decision, the government enacted a new
law which stated that abortion in the first trimester of pregnancy would not be punishable, provided the woman had
undergone compulsory pro-life counseling. Excerpts drawn from Kommers, supra note 29, at 353.
37
CC decision no. 94-343/344 DC, July 27, 1994.
38
Jacques Robert, The principle of human dignity, in THE PRINCIPLE OF RESPECT FOR HUMAN DIGNITY: SEMINAR
PROCEEDINGS 43 (Council of Europe, 1999).
39
Girard & Hennette-Vauchez, supra note 13, at 17.
40
DOMINIQUE ROUSSEAU, LES LIBERTS INDIVIDUELLES ET LA DIGNIT DE LA PERSONNE HUMAINE 69 (1998)
[hereinafter Rousseau].
41
CC decision no. 94-359 DC, January 19, 1995.
42
CC decision no. 74-54 DC, January 15, 1975, on the constitutionality of the Voluntary Interruption of Pregnancy
Act; and CC decision no. 2001-446 DC, June 27, 2001.
12
Council upheld two controversial laws enacted by the Parliament: one making it illegal to wear
full face veils in public, including the Islamic burqa;
43
and the other banning of same-sex
marriage.
44
Although human dignity was not explicitly referenced in either of these decisons, it
was clearly implicated to the extent that both matters concern religious freedom, equality and
personal existential choices. The State Council (Conseil d tat), in turn, ruled that the bar
attraction known as dwarf tossing should be prohibited, a decision discussed in Part III of this
Article. In a 2000 opinion, the Court of Appeals (Cour de Cassation) issued an extremely
controversial decision in the Perruche Case, recognizing a right not to be born, and granting a
child, represented by his parents, compensation for the fact that he was born deaf, dumb, partially
blind and with severe mental deficiency.
45
In another case that gained notoriety, the Court of
Grand Instance of Crteil recognized Corinne Parpalaixs right to undergo artificial insemination
using the sperm of her late husband, who had deposited the sperm at a sperm bank prior to
submitting to a high-risk surgical procedure.
46


In the case law of the Supreme Court of Canada, the Court has recognized
human dignity as a fundamental value underlying both the common law and the 1982 Charter of
Rights and Freedoms,
47
a value that has a communitarian dimension and is accompanied by a

43
CC decision no. 2010 - 613 DC, October 7, 2010.
44
See http://www.lesoir.be/actualite/france/2011-01-28/le-conseil-constitutionnel-dit-non-au-mariage-homosexuel-
818228.php.
45
Defendant was the laboratory that failed to detect that the mother had contracted rubella. Decision of 17 November
2000, Full Court. See
http://www.courdecassation.fr/publications_cour_26/bulletin_information_cour_cassation_27/bulletins_information_
2000_1245/no_526_1362/.
46
Affaire Parpalaix, Tribunal de Grande Instance de Crteil, August 1, 1984. For a comment on this decision, see
Gail A. Katz, Parpalaix c. CECOS: Protecting Intent in Reproductive Techology, 11 HARV. J. L. & TECH. 683
(1998).ROTECTINNTENTN REPRODUCTITECHNOLC. CECOS:
47
R. v. S. (R.J.), [1995] 1 S.C.R. 451, at 605. Available online at http://scc.lexum.org/en/1995/1995scr1-
451/1995scr1-451.html.
13
number of responsibilities.
48
For example, the meaning and scope of human dignity was directly
or indirectly involved in the discussion of cases that resulted in the striking down of legislation
against abortion,
49
the denial of a right to assisted suicide,
50
the validity of gay marriage
51
and
decriminalization of the use of marijuana.
52
In Israel, human dignity became an express
constitutional concept in 1992.
53
Over the years, respect for human dignity has been at the center
of several morally charged cases decided by the Supreme Court, such as the case in which the
Court ruled it was unacceptable to use prolonged detention of Lebaneses prisoners as bargaining
chip to obtain the return of Israeli soldiers,
54
and the decision that restated Israels absolute
prohibition of torture, with no exceptions and no room for balancing, not even in the interrogation
of suspected terrorists.
55
In South Africa, the Constitutional Court utilized human dignity to hold
the death penalty unconstitutional,
56
to permit abortion during the first trimester of a pregnancy,
57

and to protect homosexual relations.
58
Diverging from its counterparts in other countries, the

48
R. v. Salituro, [1991] 3 S.C.R. 654, at 676. Available at http://scc.lexum.org/en/1991/1991scr3-654/1991scr3-
654.html.
49
R. v. Morgentaler, [1988] 1 S.C.R. 30. Available at http://scc.lexum.org/en/1988/1988scr1-30/1988scr1-30.html.
50
Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519.
51
Reference re Same-Sex Marriage, 2004 SCC 79, [2004] 3 S.C.R. 698.
52
R. v. Malmo-Levine; R. v. Caine, 2003 SCC 74, [2003] 3 S.C.R. 571. Available at
http://scc.lexum.org/en/2003/2003scc74/2003scc74.html.
53
In 1992, the Basic Law: Human Dignity and Liberty was enacted. See
http://www.knesset.gov.il/description/eng/eng_mimshal_yesod.htm
54
Plonim v. Minister of Defense, Dinim Elyon (1997) vol. LVII n. 755.
55
Public Committee Against Torture in Israel v. The State of Israel & The General Security Service. HCJ 5100/94
(1999). Available at http://elyon1.court.gov.il/files_eng/94/000/051/a09/94051000.a09.pdf.
56
S v Makwanyane and Another (CCT3/94) [1995] ZACC 3. Available at
http://www.constitutionalcourt.org.za/Archimages/2353.PDF.
57
Christian Lawyers Association of South Africa & others v Minister of Health & others 1998 (4) SA 113 (T), 1998
(11) BCLR 1434 (T). Available at
http://ss1.webkreator.com.mx/4_2/000/000/00b/ae7/8.%20Christian%20Lawyers%20Association%20v.%20Minister
%20of%20Health.%201998.pdf.
58
National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others (CCT11/98) [1998]
ZACC 15; 1999 (1) SA 6; 1998 (1) BCLR 1517 (9 October 1998). Available at
http://www.constitutionalcourt.org.za/Archimages/2076.PDF.
14
Constitutional Court of Colombia has decided that voluntary prostitution is legitimate work.
59

There is no need to go on reciting examples, for the point is clear: human dignity has become a
central and recurrent concept in the reasoning of supreme courts and constitutional courts
throughout the world. The case of the United States will be dealt with separately.

2. Human Dignity in International Documents and Case Law

Human dignity has also become a ubiquitous idea in International Law.
Indeed, the term has been prominently placed in a wide range of declarations and treaties,
60

several of which are enforced by International Courts. In fact, the European Court of Justice
(ECJ) has used the concept of human dignity to support its decisions in a varied assortment of
cases, holding, for example, that neither the human body, nor any of its elements, could constitute
patentable inventions,
61
and that an employer fails to respect dignity by terminating an employee
because of gender reassignment surgery.
62
A complex discussion of human dignity took place in
the Omega case, in which the Court decided that human dignity may have different meanings and
scopes within the domestic jurisdictions of the European Union.
63
Likewise, the European Court

59
Corte Constitucional de Colombia [Constitutional Court of Colombia]. Sentencia [Judgment] T-62910. LAIS v.
Bar Discoteca PANDEMO. Available at http://www.corteconstitucional.gov.co/RELATORIA/2010/T-629-10.htm.
60
These include UN Charter (1945), the Universal Declaration of Human Rights (1948), the International
Convention on the Elimination of All Forms of Racial Discrimination (1965), International Covenant on Civil and
Political Rights (1966), the International Covenant on Economic, Social and Cultural Rights (1966), the American
Convention on Human Rights (1978), the Convention on the Elimination of All Forms of Discrimination Against
Women (1979), the African Charter on Human and Peoples Rights (1981), the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment (1984), the Convention on the Rights of the Child
(1989), the Charter of Fundamental Rights of the European Union (2000), and the Arab Charter on Human Rights
(2004).
61
Case C-377/98, Kingdom of the Netherlands v. European Parliament and Council of the European Union, 2001
E.C.R. I-07079.
62
Case 13/94, P v. S and Cornwall CC, 1996 E.C.R. I-2143.
63
Case C-36/02, Omega Spielhallen-und Automatenaufstellungs-GmbH v. Oberbrgermeisterin der Bundesstadt
15
of Human Rights (ECrHR) has often employed human dignity as an important element in its
interpretation of the European Convention on Human Rights (1950).
64
In the Tyrer case, the
Court held that to subject a fifteen year old to corporal punishment (three strokes of the birch)
was an assault on his dignity and constituted impermissible treatment of the youth as an object in
the power of authorities.
65
The ECrHR also found dignity to be implicated in a case involving the
abandonment of spousal immunity to the charge of rape,
66
in criminal prosecution for private
homosexual behavior among consenting adults
67
and in refusal to allow legal gender
reassignment.
68
The Inter-American Court on Human Rights has also cited human dignity on
many occasions, in relation, for example, to physical, sexual and psychological violence against
inmates in a prison,
69
solitary confinement or otherwise inhumane incarceration conditions,
70

forced disappearances,
71
and extrajudicial executions.
72
At the end of 2010, the Court decided
against granting amnesty to crimes perpetrated by state agents (murder, torture and forced
disappearance of persons) during the military dictatorship in Brazil.
73



Bonn, 2004 E.C.R. I-09609. The dispute involved the prohibition of a game supplied by a British company, a
laserdrome used for simulating acts of homicide. A German Court upheld the decision on grounds that the killing
game was an affront to human dignity.
64
The convention, however, does not expressly incorporate the concept of human dignity in its text.
65
Tyrer v. the United Kingdom, 26 Eur. Ct. H.R. (1978).
66
S.W. v. United Kingdom, C.R. v. United Kingdom, 21 Eur. Ct. H.R. (1995).
67
Dudgeon v. United Kingdom (1981) 45 Eur. Ct. H.R.
68
Goodwin v. United Kingdom, 35 Eur. Ct. H.R. (2002).
69
See, e.g., Miguel Castro-Castro Prison v. Peru, Inter-Am. C.H.R. Series C No. 160 (2006).
70
See, e.g., Bmaca Velsquez Case, INTER-AM. C.H.R. SERIES C NO. 70 (2000); Boyce et al. v. Barbados, INTER-
AM. C.H.R. SERIES C NO. 169 (2007); Juvenile Reeducation Institute v. Paraguay, INTER-AM. C.H.R. (2004); Caesar
v. Trinidad and Tobago, INTER-AM. C.H.R. (2005).
71
See, e.g., Velsquez Rodriguez Case, INTER-AM. C.H.R. SERIES C NO. 4 (1988);
72
See, e.g., Manuel Cepeda Vargas v. Colombia, Inter-Am. C.H.R. (2006).
73
Case Gomes Lund and others v. Brazil, judgment of 24 November 2010. See official page of the ICHR at
http://search.oas.org/default.aspx?k=Brasil,%20caso%20araguaia&s=All+Sites.
16
3. Human Dignity in the Transnational Discourse

In recent years, constitutional and supreme courts all over the world began
to engage in a growing constitutional dialogue
74
involving mutual citation, academic
interchange
75
and public fora such as the Venice Commission.
76
Two factors have contributed to
the deepening of this process. First, countries that are newcomers to the rule of law often draw
from the experience of more seasoned democracies. In the past several decades we have watched
waves of democratization across the world, including Europe in the 1970s (Greece, Portugal and
Spain), Latin America in the 1980s (Brazil, Chile, Argentina) and Eastern and Central Europe in
the 1990s. Courts like the U.S. Supreme Courts or the German Constitutional Court have served
as a significant role model for these new democracies. Although the flow of ideas is more intense
in one direction, it is also true that, as with any other exchange, this is a two-way avenue. The
second factor involves the sharing of experiences among more mature and traditional
democracies. Highly complex and plural societies face common challenges in areas that range
from national security to racial, religious and sexual matters. Foreign decisions may offer new
information and perspectives, and can also help build consensus.
77
This seems to be the case with
the death penalty (except in the United States) and, to some extent, also abortion (the United
States, Germany, France and Canada, among others, have similar laws). It goes without saying

74
See ANNE-MARIE SLAUGHTER, A NEW WORLD ORDER 70 (2004) [hereinafter Slaughter].
75
Former foreign court justices, like Aaron Barak from the Supreme Court of Israel, and Dieter Grimm from the
Constitutional Court of Germany, are frequent visitors at American Law Schools, such as Yale and Harvard. At Yale
Law School, the Global Constitutionalism Seminar, directed by Robert Post, brings together a group of about fifteen
Supreme Court and Constitutional Court judges from around the world.
http://www.law.yale.edu/academics/globalconstitutionalismseminar.htm. See also MARK TUSHNET, A COURT
DIVIDED: THE REHNQUIST COURT AND THE FUTURE OF CONSTITUTIONAL LAW 176 (2005).
76
According to its website, the European Commission for Democracy through Law, better known as the Venice
Commission, is an advisory body of the Council of Europe and a think-tank on constitutional law. See
http://www.venice.coe.int/site/main/Presentation_E.asp, last visited on April 13, 2011.
17
that foreign and international decisions have only persuasive, but not binding, authority. This fact
alone should be sufficient to put aside any parochial fears.

It is not difficult to find examples of this dialogue between courts from
different countries. The Supreme Court of Canada, for example, frequently cites foreign or
international courts conceptions of dignity. In Kindler v. Canada, the dissenting Justices cited
the abolition of the death penalty in the United Kingdom, France, Australia, New Zealand,
Czechoslovakia, Hungary, and Romania.
78
In R. v. Morgentaler,
79
the Court referenced decisions
of the German Constitutional Court and the United States Supreme Court on abortion. In R. v.
Smith,
80
the dissent cited many United States Supreme Court cases on cruel and unusual
punishment. In R. v. Keegstra, a case upholding the prohibition of hate speech, the Court cited
several pronouncements by the European Commission of Human Rights on the matter.
81
The
Canadian Supreme Courts decision in the Rodriguez case,
82
in which it failed to recognize a
right to assisted suicide, was cited by the European Court of Human Rights in Pretty v. United
Kingdom when the Court addressed the same issue.
83
In India, the Supreme Court often cites
United States Supreme Court decisions, in a variety of contexts. In one case, the American

77
SLAUGHTER, supra note 74, at 77 and 78.
78
[1991] 2 S.C.R. 779 (allowing the extradition of an American capital murder defendant).
79
R. v. Morgentaler, [1988] 1 S.C.R. 30 (striking down provisions of the Criminal Code that prohibited abortion).
80
R. v. Smith (Edward Dewey), [1987] 1 S.C.R. 1045 (held that a minimum mandatory prison term provided for by
the Narcotic Control Act failed the proportionality test and constituted cruel and unusual punishment.
81
R. v. Keegstra, [1990] 3 S.C.R. 697.
82
See supra, note 50.
83
Application no. 2346/02 (2002). Available at
http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=698325&portal=hbkm&source=externalbydoc
number&table=F69A27FD8FB86142BF01C1166DEA398649.
18
doctrine of prospective overruling was object of intense debate.
84
In another judgment, the
Court applied the American standard of heightened scrutiny for gender discrimination, with a
long quote from an opinion by Justice Ginsburg.
85
In South Africa, the Constitutional Court has
cited decisions from the Supreme Court of Canada in cases involving womens right to equality,
as well as capital punishment. In an abortion opinion by the Polish Supreme Court, Judge Lech
Garlicki, writing in dissent, cited opinions by the Spanish and the German Constitutional
Courts.
86


In the United States, references to foreign law and foreign decisions have
been relatively scarce.
87
By the end of the twentieth century, observers had diagnosed a certain
isolation and parochialism in the lawyers and courts of the United States.
88
At the turn of the
century, however, a new wind started to blow, with foreign precedents being cited in opinions by
the United States Supreme Court in cases such as Knight v. Florida,
89
Atkins v. Virginia
90
and

84
I. C. Golaknath & Ors v. State of Punjab & Anrs [1967] INSC 45; AIR 1967 SC 1643; 1967 (2) SCR 762 (27
February 1967). Available at http://www.liiofindia.org/in/cases/cen/INSC/1967/45.html.
85
Anuj Garg & Ors v. Hotel Association of India & Ors [2007] INSC 1226 (6 December 2007). Available at
http://www.liiofindia.org/in/cases/cen/INSC/2007/1226.html.
86
Polish Abortion Decision (1997), K 26/96 OTK ZU No. 2 (Constitutional Tribunal).
87
On this matter, see generally ANNE-MARIE SLAUGHTER, A NEW WORLD ORDER (2004) and Diane Marie Amann,
Raise the Flag and Let It Talk: On the Use of External Norms in Constitutional Decision Making, 2 INT. J.
CONSTITUTIONAL LAW 597 (2004). For some precedents, see See e.g., Jacobson v. Massachusetts, 197 U.S. 11, 31-32
& n.1 (1905); Wickard v. Filburn, 317 U.S. 111 (1942); Younstown Sheet & Tube Co. V. Sawyer, 343 U.S. 579,
651-52 (1952) (Justice Jacksons concurrence); and Miranda v. Arizona, 348 U.S. 436, 486-490 (1966).
88
Bruce Ackerman, The Rise of World Constitutionalism, 83 VA. L. REV. 771, 772 ([T]he global transformation has
not yet had the slightest impact on American constitutional thought. The typical American judge would not think of
learning from an opinion by the German or French constitutional Court. Nor would the typical scholar assuming
contrary to fact, that she could follow the natives reasoning in their alien tongues. If anything, American practice and
theory have moved in the direction of emphatic provincialism.).
89
528 U.S. 990 (1999) (Breyer, J, dissenting). In a dissent from the denial of certiorari Justice Stephen Breyer cited
cases from India, Zimbabwe, Canada, South Africa and from the European Court of Human Rights.
90
536 U.S. 304 (2002). Justice Stevenson, writing for the majority, asserted within the world community, the
imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly
disapproved. Id. at 316 n. 21.
19
Grutter v. Bollinger.
91
The landmark decision, however, came in 2003, with Lawrence v. Texas,
92

when Justice Kennedy, writing for the majority, cited a decision of the European Court of Human
Rights.
93
This reference prompted a harsh dissent by Justice Scalia, joined by Chief Justice
Rehnquist and Justice Thomas.
94
In 2005, in Roper v. Simmons,
95
Justice Kennedy once again
cited international and foreign law as it pertained to the international opinion against the
juvenile death penalty, adding that the opinion of the world community, while not controlling
our outcome, does provide respected and significant confirmation to our own conclusions.
96
In
their confirmation hearings, Chief Justice John Roberts and Justice Samuel Alito expressed
disaproval of such references. Legislative threats to ban the use of foreign legal authorities and
even to make it an impeachable offense did not catch momentum.
97
It is clear, thus, that two
different approaches uncomfortably coexist
98
within the Supreme Court: the nationalist
jurisprudence view that rejects any reference to foreign and international precedents and the
transnationalist jurisprudence view, which allows such references. The second approach, which
is more cosmopolitan, progressive and venerable,
99
should prevail.

C. HUMAN DIGNITY IN THE UNITED STATES

91
539 U.S. 306 (2003). In her separate opinion, Justice Ginsburg cited two international law conventions on
discrimination. Id. at 344.
92
539 U.S. 558 (2003).
93
Id. at 576, citing the ECRHR decision on Drudgeon v. United Kingdom.
94
Id. at 598 (Scalia, J., joined by Rehnquist, C.J., and Thomas, dissenting), stating the foreign views are
meaningless data and that the Court should not impose foreign moods, fads, or fashions on Americans.
95
543 U.S. 551 (2005).
96
Id.
97
See Charles Lane, Scalia Tells Congress to Mind Its Own Business, WASH. POST, May 19, 2006, available at
http://www.washingtonpost.com/wp-dyn/content/article/2006/05/18/AR2006051801961.html.
98
Harold Hongju Koh, International Law as Part of Our Law 52 (2004). Faculty Scolarship Series. Paper 1782.
http://digitalcommons.law.yale.edu/fss_papers/1782/.
20

Although there is no express reference to human dignity in the text of the
United States Constitution,
100
the Supreme Court has long employed the idea.
101
However, it was
not until the 1940s,
102
and particularly after the 1950s,
103
that the concept began to gain influence
in American Constitutional jurisprudence. Some authors link this fact to the presence of Justice
William Brennan on the Court and his view of human dignity as a basic value, a constitutional
principle and source of individual rights and liberties.
104
As seen in the case law discussed below,
human dignity has never been regarded in the Justices reasoning as a stand-alone or autonomous
fundamental right, but as a value underlying express and unenumerated rights, such as the rights
to privacy and equal protection, economic assistance from the government and dignity at the end
of life, and protection from self-incrimination, cruel and unusual punishment and unreasonable
searches and seizures. Human dignity concerns are also present when freedom of expression and
reputational issues clash.
105
Thus, the role of human dignity has mostly been to inform the
interpretation of particular constitutional rights.
106


99
Id.
100
Within the states, the Montana Constitution has an explicit human dignity clause. Article II, section 4 provides:
Individual dignity. The dignity of man is inviolable . . .. See Jackson, supra note 2, at 28, noting that the clasuse
has played a secondary role.
101
See e.g., Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793), at 455; Brown v. Walker, 161 U.S. 591 (1896) (Field,
J., dissenting), at 632; Adamson v. California, 332 U.S. 46 (1947), at 62 (Frankfurter J., concurring).
102
Justice Murphy used the term dignity in his dissents in Screws v. United States, 325 U.S. 91 (1945) (Murphy, J.,
dissenting, at 135); In re Yamashita, 327 U.S. 1 (1946) (Murphy, J., dissenting, at 29); Korematsu v. United States,
323 U.S. 214 (Murphy, J., dissenting).
103
The first appearence of the expression human dignity in a majority opinion was in Rochin v. California, 342
U.S. 165, 174 (1952). See Jackson supra note 2, at 16, n. 7.
104
See Stephen J., Law and Human Dignity: The Judicial Soul of Justice Brennan, 7 WM. & MARY BILL RTS. J. 223,
228, 233, 235 (1998-1999); and also SETH STERN & STEPHEN WERMIEL, JUSTICE BRENNAN: LIBERAL CHAMPION
409-433 (2010).
105
Goodman supra note 5, at 757, has identified these eight categories of cases as the ones in which the Supreme
Court has expressly related human dignity to specific constitutional claims, sometimes grounding its decisions on the
need to advance human dignity, and sometimes rejecting it as a prevailing argument.
106
Neuman supra note 4, at 271.
21

It is in the context of the right to privacy that human dignity has probably
played its most prominent role. It is true that dignity was not expressly invoked in the initial
landmark cases, such as Griswold v. Connecticut
107
and Roe v. Wade.
108
Yet, the core ideas
underlying human dignity autonomy and freedom to make personal choices were central to
these decisions.
109
In a subsequent abortion case, Planned Parenthood of Southeastern
Pennsylvania v. Casey,
110
human dignity was explicitly mentioned by the plurality opinion
111
and
by the dissent.
112
The same occurred in Stenberg v. Carhart,
113
another abortion decision.
However, it was in Lawrence v. Texas,
114
the case finding that the right to privacy prohibits the
criminalization of consensual intimate relations among same-sex partners, that human dignity

107
381 U.S. 479 (1965) (striking down a law that prohibited the use of contraceptives by married couples). This
decision created a new fundamental right the right of privacy emanating from the penumbras of the bill of
rights that protects marital relations from state intrusions. According to the view expressed in this Article, human
dignity is the true source of non-enumerated fundamental rights.
108
410 U.S. 113 (1973) (securing the right of a woman to have an abortion in the first and second trimesters of
pregnancy).
109
Some authors even contend that privacy is a misnomer and that dignity is a better term for the right at issue. See
Jeremy M. Miller, Dignity as a New Framework, Replacing the Right to Privacy, 30 T. JEFFERSON L. REV. 1, 4
(2007-2008).
110
505 U.S. 833 (1992), in which the Supreme Court partially overruled and revised the constitutional framework
governing the right to abortion.
111
Id. at 851: These matters, involving the most intimate and personal choices a person may make in a lifetime,
choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.
(emphasis added). Human dignity was also mentioned in Justice Stevens separate opinion. Id. at 916 (Stevens J.,
concurring in part, dissenting in part). In another abortion decision Stenberg v. Carhart, 530 U.S. 914 (2000)
Justice Breyer, writing for the Court, also cited the concept of dignity.
112
Justice Scalia reproduces several instances the word dignity was mentioned by his peers, along with others (as
autonomy and body integrity), to conclude that the best the Court can do to explain how it is that the word liberty
must be thought to include the right to destroy human fetuses is to rattle off a collection of adjectives that simply
decorate a value judgment and conceal a political choice.
113
530 U.S. 914 (2000). Notably, although the Court in this case struck down a restriction on certain types of
abortions, in a subsequent case, Gonzales v. Cahart, 550 U.S. 124 (2007), the Court upheld a similar restriction,
although it did not explicitly overrule Stenberg.
114
539 U.S. 558 (2003) (securing the right to sexual intimacy for same-sex couples).
22
played its most important role in a ruling by the Court.
115


In the equal protection context, with regard to womens rights, landmark
cases such as Reed v. Reed
116
and Frontiero v. Richardson
117
did not mention human dignity in
their rationales, but some other opinions dealing with sex discrimination have expressly
referenced the concept.
118
The idea of human dignity, however, became more important in the
context of racial discrimination. In Brown v. Board of Education,
119
although the Courts opinion
did not expressly refer to human dignity, it has been properly recognized that the concept clearly
underlied the unanimous opinion against school segregation.
120
In subsequent cases, majority
opinions have expressly referenced dignity in relation to racial discrimination.
121


In cases involving the privilege against self-incrimination, the Supreme
Court asserted, in Miranda v. Arizona,
122
that the interrogation environment, even absent physical

115
539 U.S. 558, 567, 574, 577 (2003). Writing for the majority, Justice Anthony M. Kennedy invoked human
dignity in several different passages of his opinion.
116
404 U.S. 71 (1971) (declaring unconstitutional a state law that established that males had preference over females
in the appointment of estate administrators).
117
411 U.S. 677 (1973) (declaring unconstitutional rules allowing male members of the armed forces to declare their
wives as dependents while female military personnel could not do the same with respect to their husbands).
118
See e.g., J.E.B. v. Alabama ex rel., 511 U.S. 127, 141 (holding that challenging a juror solely on the basis of sex
denigrates the dignity of the excluded juror); Robert v. United States Jaycees, 469 U.S. 609, 625 (upholding a state
law that compelled associations to accept women as regular members).
119
347 U.S. 483 (1954).
120
See William A. Parent, Constitutional Values and Human Dignity, in THE CONSTITUTION OF RIGHTS, HUMAN
DIGNITY AND AMERICAN VALUES, 59 (Michal J. Meyer & William A. Parent eds., 1992) [hereinafter Meyer &
Parent].
121
See Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964); and, particularly, Rice v. Cayetano, 528
U.S. 495, 517 (2000).
122
384 U.S. 436 (1966).
23
intimidation, is destructive of human dignity.
123
Despite this holding, over the years human
dignity lost its thrust in Fifth Amendment cases.
124
With regard to protection against
unreasonable searches and seizures, Rochin v. California
125
established a direct connection
between the form by which evidence is obtained and human dignity. However, human dignitys
fate in the category of cases arising under Fourth Amendment became gloomier in the second
half of the 1980s, after the commencement of the war on drugs.
126
In relation to protection
against cruel and unusual punishment, and particularly regarding the death penalty, the Court
declared in Furman v. Georgia
127
that capital punishment, as applied in some states
128

randomly, with unguided discretion for juries and, as noted in a concurrence by Justice
Douglas,
129
with disproportionate impact on minorities was inadmissible. Four years later,
however, in Gregg v. Georgia,
130
the Court upheld Georgias redesigned death penalty statute.
Yet, dignity was expressly invoked in Atkins v. Virginia
131
and Roper v. Simmons,
132
when the
Court struck down as unconstitutional, respectively, the execution of mentally retarded
individuals and offenders under age of eighteen.


123
Id. at 457. The majority added that the constitutional foundation underlying the privilege is the respect a
government state or federal must accord to the dignity and integrity of its citizens. Id. at 460.
124
See Allen v. Illinois, 478 U.S. 364 (1986); Schmerber v. California, 384 U.S. 757 (1966); United States v. Balsys,
524 U.S. 666 (1998).
125
342 U.S. 165 (1952). (holding that involuntary pumping of the petioners stomach to extract drug capsules
shocks the conscience and violated the due process clause of the Fourteenth Amendment).
126
See e.g. Skinner v. Railway Labor Executives Assn, 489 U.S. 602 (1988); National Treasury Employees Union
v. Von Raab, 489 U.S. 656 (1989); United States v. Montoya de Hernandez, 473 U.S. 531 (1985).
127
408 U.S. 238 (1972).
128
408 U.S. 238 (1972).
129
Furman, 408 U.S. at 240 (Douglas, J., conc.).
130
428 U.S. 153 (1976).
131
536 U.S. 304 (2002).
132
543 U.S. 551 (2005).
24
In the scenario of death with dignity, Chief Justice Warren referred to
human dignity in his dissent in Cruzan v. Director, Missouri Department of Health,
133
a case in
which the Supreme Court affirmed a decision that refused to allow the withdrawal of life-
sustaining treatment for a woman who had been in a vegetative coma for many years. In the years
that followed, the Court denied the existence of a right to physician-assisted suicide in
Washington v. Glucksberg
134
and Vacco v. Quill.
135
As for claims involving social and welfare
rights, the closest the Supreme Court has come to the conception of the Constitution as creating
positive entitlements was probably in Goldberg v. Kelly,
136
a case in which the Court held that
welfare recipients could not have their benefits terminated without fair hearings. Finally, in the
Courts case law, reputational interests have been traditionally outweighed by First Amendment
protection in conficts involving freedom of expression and the opposing right of an individual to
protect his image, the latter of which the Court has not recognized as a constitutionally protected
interest.
137


D. ARGUMENTS AGAINST THE USE OF HUMAN DIGNITY AS A LEGAL CONCEPT

A number of authors have opposed the use of human dignity in law, if not
its use altogehter, using three basic lines of arguments. The first argument is formal in nature:
when human dignity is not in the text of a states constitution as it is the case in the United

133
497 U.S. 261 (1990).
134
421 U.S. 702 (1997).
135
521 U.S. 793 (1997).
136
397 U.S. 254 (1970).
137
See e.g., Rosenblatt v. Baer, 383 U.S. 75 (1966); and Paul v. Davis, 424 U.S. 693 (1976).
25
States and France it cannot be used in legal reasoning. Faithful to textualism
138
as his
phylosophy of constitutional interpretation, this is the point of view sustained by Justice Scalia.
139

The second argument is more ideological: human dignity should not be used in legal discourse in
countries in which it is not rooted in the legal tradition. This is the view, for example, of Neomi
Rao, for whom human dignity is linked to European communitarian values that could weaken
American constitutionalism, which is based on individual rights.
140
Likewise, James Q. Whitman
has argued that privacy law in America is linked to the value of liberty, while in Europe it is
oriented toward dignity, understood as personal honor.
141
Whitman makes two highly
controversial assertions in connection with his argument. In the first place, he links the idea of
dignity in Europe with the star of fascism
142
and Nazi history.
143
Then, in the conclusion of
his analysis, he declares that the prospects for the kind of dignitary protections embodied in a
law of gay marriage, we could say, are remote and that protecting peoples dignity is quite
alien to the American tradition.
144
The third objection to the use of dignity as a legal concept is
that human dignity lacks specific and substantive meaning. In a frequently cited editorial, Ruth
Macklin wrote that dignity is a useless concept and a vague restatement of existing
notions.
145
Along the same lines, Steven Pinker claimed that the concept of dignity remains a

138
ANTHONY SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 23 (1997).
139
In a debate with the author of this Article at the University of Brasilia in 2009, Justice Antonin Scalia affirmed
that there is no human dignity clause in the United States Constitution, and that for this reason it cannot be invoked
by judges and the courts.
140
Rao, supra note 3, at 204.
141
Id., at 1220.
142
Id., at 1166.
143
Id., at 1187.
144
Id., at 1221.
145
Ruth Macklin, Dignity Is a Useless Concept, 327 BRITISH MED. J. 1419 (2003).
26
mess and serves a Catholic agenda of obstructionist ethics.
146


Although none of the above arguments are irrelevant, they all can be
countered and overcome. As for the textualist objection, it suffices to remember that all
constitutions bear values and ideas that inspire and underlie their provisions without express
textual inclusion. In the United States Constitution, for example, there is no mention of
democracy, rule of the law or judicial review and, nevertheless, these are omnipresent concepts in
American jurisprudence and case law. The same holds true for human dignity, which is a
fundamental value that nourishes the content of different written norms, at the same time that it
informs the interpretation of the constitution generally, especially when fundamental rights are
involved.
147
Significant evidence of this argument lies within the European Convention on
Human Rights, the first binding international treaty approved after the Universal Declaration of
Human Rights. Despite the fact that it does not make reference to human dignity, the treatys
Organs, and noticeably the European Court of Human Rights, have used the concept in several of
their decisions, as described above.

The political and philosophical objections to the use of human dignity are
also rebuttable. Constitutional democracies everywhere strive to achieve a balance between
individual rights and communitarian values. And even though it is up to the political process to
set the boundaries of these (sometimes) competing spheres meaning that the weight of one or
the other may vary to some extent concerns about human dignity can be found on both sides of
the scale. Human dignity has to do, for example, with freedom of expression and with

146
Id.
147
Neuman, supra note 4, at 251.
27
compulsory vaccination. As for Whitmans views, there is a fundamental problem with them.
Whitman does not make a clear and proper distinction between dignitys ancient connotation
rank, status, personal honor and its contemporary meaning, based on the objective intrinsic
value of the individual, as well as some subjective elements, such as personal autonomy. This
might explain why he links dignity to Fascism and National Socialism and their notions of
personal honor and not with a broad and generous conception of human rights that was
developed after the end of the World War II as a reaction to the abuses perpetrated by the axis
powers. Another consequence of not making a necessary differentiation between human dignitys
ancient and current meanings can be detected in the opposition Whitman sees between privacy as
liberty and privacy as dignity (that is, as personal honor). As I have intended to demonstrate,
dignity is part of the core content of both liberty and privacy, and not a concept (and much less a
right) that could be contradictory to either. Lastly, prospects for gay marriage seem at this point
less dim than Whitman had anticipated.

Finally, there is the condemnation that dignity is a vague slogan, which can
be co-opted by authoritarianism and paternalism. As with any other high profile abstract term
such as the right to the free development of ones personality in German constitutional law, or the
Due Process and Equal Protection clauses in the American Constitution there are risks involved
in the construction of what human dignity means. Any complex idea, in fact, is subject to abuse
or misuse: democracy can be manipulated by populists, federalism can degenerate into hegemony
of the central government, and judicial review can be contaminated by politics. As Ronald
Dworkin said, it would be a shame to surrender an important idea or even a familiar name to this
28
corruption.
148
Thus, human dignity, no less than numerous other crucial concepts, needs good
scholarship, public debate, overlapping consensus, accountable governments and prudent courts.
The job to be done is to find a minimum content for human dignity that can warrant its use as a
meaningful and consequential concept, compatible with free will, democracy and secular values.

III. LEGAL NATURE AND MINIMUM CONTENT OF HUMAN DIGNITY

A. Human Dignity as a Legal Principle

From what we have seen so far, human dignity is a multi-facetted concept
that is present in religion, philosophy, politics and law. There is a reasonable consensus that it
constitutes a fundamental value that underlies constitutional democracies generally, even when
not expressly written in constitutions. In Germany, the dominant view is that human dignity is an
absolute value that prevails in any circumstance.
149
That assertion has been pertinently
challenged over the years.
150
As a general rule, law is not a space for absolutes. Even if it is
reasonable to assert that human dignity usually prevails, there are unavoidable situations in which
it will be at least partially defeated. An obvious example is the case of somenone who after due
process of law is convicted to prison: an important part of his or her dignity which is
entrenched in freedom of movement is affected. So, there is a clear sacrifice of one aspect of
dignity in favor of another value. Human dignity, then, is a fundamental value, but it should not
be regarded as an absolute. Values, either moral or political, enter the world of law commonly

148
RONALD DWORKIN, JUSTICE FOR HEDGEHOGS 204 (2011) [hereinafter Dworkin, Hedgehogs].
149
See 27 BVerfGE 1 (Microcensus case) and 30 BVerfGE 173 (1971) (Mephisto Case).
150
See Grimm, supra note 26, at 5.
29
assuming the form of a principle.
151
And although constitutional principles and rights frequently
overlap, this is not exactly the case here. The best way of categorizing human dignity is as a legal
principle that has constitutional status, and not as an autonomous right, as demonstrated below.

As a fundamental value and a constitutional principle, human dignity
serves both as a moral justification for and a normative foundation of fundamental rights. It is not
necessary to elaborate in more depth and detail on the qualitative distinction between principles
and rules. The conception adopted here is the one that became dominant in legal theory, based on
Ronald Dworkins seminal writings on the subject
152
and further developments provided by
German legal philosopher Robert Alexy.
153
According to Dworkin, principles are standards that
contain requirements of justice or fairness or some other dimension of morality.
154
Unlike
rules, they are not applicable in an all-or-nothing fashion,
155
and in certain circumstances they
may not prevail due to the existence of other reasons or principles that argue in a different
direction. Principles have a dimension of weight
156
and when they intersect, it will be necessary
to consider the specific importance of each principle in the concrete situation.
157
For Alexy,
principles are optimization requirements
158
whose enforcement will vary in degree according to

151
Values, of course, also underly rules. But in that case, the value judgment has already been made by the
legislature when enacting the rule, regarded as an objective norm that prescribes certain behavior. Principles, on the
other hand, are more abstract norms that state reasons, leaving courts more leeway to determine their meaning in
concrete cases.
152
See RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 14-45 (1997) [hereinafter Dworkin]. The book republishes
the article The Model of Rules, from 1967, originally published at 35 UNIV. CHICAGO L. REV. 14 (1967).
153
See especially ROBERT ALEXY, A THEORY OF CONSTITUTIONAL RIGHTS 87 (Julian Rivers, trans., Oxford Univ.
Press 2004), at 44-69 [hereinafter Alexy].
154
Dworkin, supra note 152, at 22.
155
Id. at 24.
156
Id. at 26.
157
Id.
158
Alexy, supra note 153, at 47.
30
what is factually and legally possible.
159
Thus, under Alexys theory, principles are subject to
balancing and to proportionality, and, depending on context, they may give way to opposing
elements.
160
These views are not immune to controversies.
161
But it will not be possible here to
expand this debate. My predicament is that legal principles are norms that have more or less
weight in different circumstances. But, in any case, principles provide arguments that must be
considered by courts, and each principle requires a good faith commitment to its realization, to
the extent such realization is possible.
162


Constitutional principles perform different roles in the legal system, and at
the moment of their concrete application they always generate rules that will govern specific
situations. To distinguish two of its main roles, one should think of a principle as two concentric
circles.
163
The inner circle, closer to the center, bears the principles core meaning and is a direct
source of rights and duties. For example, the core meaning of human dignity requires the ban of
torture, even in a legal system that has no particular rules prohibiting such conduct. Of course,
when a more specific rule already exists meaning that the framers or the legislature detailed the
principle in a more concrete fashion there is no need to resort to the more abstract principle of
human dignity. But, in another example, in countries where the right to privacy is not express in

159
Id. at 48.
160
Id. See also generally, Robert Alexy, Balancing, Constitutional Review, and Representation, 3 INTL J. CONST. L.
572-581 (2005).
161
See e.g., JURGEN HABERMAS, BETWEEN FACTS AND NORMS: CONTRIBUTIONS TO A DISCOURSE THEORY OF LAW
AND DEMOCRACY 310 (1996) (hereinafter Habermas); and Ernst-Wolfgang Bckenfrde, Grundrechte als
Grundatznormen: Zur gegenwrtigen Lage der Grundrechtsdogmatik, in STAAT, VERFASSUNG, DEMOKRATIE 185
(1991), cited and rebutted by Alexy, supra note 155, at 577. See also HUMBERTO VILA, THEORY OF LEGAL
PRINCIPLES (2007).
162
See PATRICIA BIRNIE, ALAN BOYLE AND CATHERINE REDGWELL, INTERNATIONAL LAW & THE ENVIRONMENT 34
(2009).
31
the constitution as in the United States or the general right to non self-incrimination is not
explicit as in Brazil these rights can be harvested from the core meaning of dignity. This is
the first role of a principle like human dignity: to be a source of rights and consequentially,
duties including non-enumerated rights, which are recognized as part of a mature democratic
society.

The other major role played by the principle of human dignity is an
interpretive role. Human dignity is part of the core content of fundamental rights, such as
equality, freedom or privacy. Therefore, it will necessarily inform the interpretation of such
constitutional rights, helping define their meaning in particular cases. Furthermore, in cases
involving gaps in the legal system, ambiguities in the law, the intersection between constitutional
rights and tensions between rights and collective goals, human dignity can be a good compass in
the search for the best solution. Moreover, in its most basic application, any statute found to
violate human dignity, on its face or as applied, would be void.
164
Consistent with my assertion
that human dignity is not an absolute value, it is not an absolute principle either. Indeed, if a
constitutional principle can underly both a fundamental right and a collective goal,
165
and if rights
collide against themselves or with collective goals, a logical deadlock occurs. A shock of
absolutes is insolvable. What can be said is that human dignity, as fundamental value and
principle, should have precedence in most situations, but not necessarily always. Furthermore,
when true (not just rhetorical) aspects of human dignity are present on both sides of the argument,

163
The image of two concentric circles has been used by ANA PAULA DE BARCELLOS, A EFICCIA JURDICA DOS
PRINCPIOS: O PRINCPIO DA DIGNIDADE DA PESSOA HUMANA [THE LEGAL EFFICACY OF PRINCIPLES: THE PRINCIPLE
OF DIGNITY OF THE HUMAN PERSON] 122-123 (2008), at 67.
164
A statute is unconstitutional on its face when it is contrary to the constitution in the abstract, that is, in any
circumstance, and is thus void. A statute is unconstituional as applied when it is consistent with the constitution
generally, but produces an unacceptable consequence in a particular circumstance.
32
the discussion becomes more complex. In such circumstances, cultural and political background
may affect the courts choice of reasoning, a good example being the clash between privacy (in
the sense of reputation) and freedom of the press.

A few final words why the characterization of human dignity as a
freestanding constitutional right is not the best approach. It is true that principles and rights are
closely linked ideas.
166
Both constitutional principles and constitutional rights represent an
opening of the legal system to the system of morality.
167
However, since human dignity is
regarded as the foundation for all truly fundamental rights and as the source of part of their core
content, it would be contradictory to make it a right in its own. Furthermore, if human dignity
were to be considered a constitutional right in itself, it would need to be balanced against other
constitutional rights, which would place it in a weaker position than if it were to be used as an
external parameter for permissible solutions when rights clash. As a constitutional principle,
however, human dignity may need to be balanced against other principles or collective goals.
168

Again, it should usually prevail, but that will not be always the case. It is better to recognize this
fact than attempt to deny it with circular arguments.
169



165
See Alexy, supra note 153, at 65 (Principles can be related both to individual rights and to collective interests.).
166
Dworkin, supra note 152, at 90 (Arguments of principle are arguments intended to establish an individual right;
arguments of policy are arguments intended to establish a collective goal. Principles are propositions that describe
rights; policies are propositions that describe goals.).
167
Alexy, supra note 153, at 4.
168
On this tension between individual rights and collective goals, Ronald Dworkin has coined a phrase that became
emblematic in the eternal clash between the individual and the reasons of state: Individual rights are trumps held by
individuals. He added, It follows from the definition of a right that it cannot be . . . defeated by appeal to any of the
ordinary routine goals of political administration, but only by a goal of special urgency.See Dworkin, supra note
152, at xi and 92
33
B. THE INFLUENCE OF KANTIAN THOUGHT

Immanuel Kant (1724-1804), one of the most influential philosophers of
the Enlightenment, is a central figure in Western modern moral and legal philosophy. Many of
his reflections are directly connected with the idea of human dignity and it is no surprise that he
is the most frequently cited author in works on the subject.
170
Notwithstanding the occasional
challenges to his system of morality,
171
Kantian ethics have become a crucial part of the grammar
and the semantics of the study of human dignity.
172
For this reason, running the risk of
oversimplification, I sketch below three of his central concepts: the categorical imperative,
autonomy and dignity.
173


According to Kant, Ehtics is the realm of moral law, comprised of
commands that govern the will that is in conformity with reason. Such commands are called
imperatives, which are either hypothetical or categorical. A hypothetical imperative identifies the
action that is good as means to achieve an end. The categorical imperative corresponds to an
action that is good in itself, regardless of whether it serves a determinate end. It is a standard of

169
This seems to be the case with Alexys theory that the human dignity principle can be balanced and not take
preference, but that there is a human dignity rule that is the product of such balancing that will always prevail. See
Alexy, supra note 153, at 64.
170
See McCrudden, supra note 10, at 659.
171
See e.g., DAVID HUME, A TREATISE OF HUMAN NATURE (1738) (Book II, III, iv); and G.W.F. HEGEL,
PHILOSOPHY OF RIGHT 159 (Par. 150) (trans. S.W. Dyde, 1996).
172
Some authors have used the expression kantische Wende (Kantian revival) to refer to the renewed influence of
Kant in the contemporary legal debate. See OTFRIED HOFFE, KATEGORISCHE RECHTSPRINZIPIEN. EIN KONTRAPUNKT
DER MODERNE, 135 (1990).
173
The concepts discussed here were drawn mostly from IMMANUEL KANT, GROUNDWORK OF THE METAPHYSICS OF
MORALS (Mary Gregor, trans., Cambridge University Press 1998) [hereinafter Kant], which concentrates most of
Kants thought on ethics. See generally JENS TIMMERMANN, KANTS GROUNWORK OF THE METAPHYSICS OF MORALS:
A COMMENTARY (2007); ROGER SCRUTON, KANT: A VERY SHORT INTRODUCTION 73-95 (2001); and FREDERICK
COPLESTON, 6 A HISTORY OF PHILOSOPHY 394 (1960), at 308-348 [hereinafter Copleston].
34
rationality and represents what is objectively necessary in a will that conforms itself to reason.
174

This categorical imperative, or imperative of morality, was enunciated by Kant in a synthetic and
famous proposition: Act only in accordance with that maxim through which you can at the same
time will that it become a universal law.
175
Note that instead of presenting a catalogue of
specific virtues, a list of dos and donts, he conceived a formula of determining ethical
action.
176
Another formulation of the categorical imperative is the following: So act that you use
humanity, whether in your own person or in the person of any other, always at the same time as
an end, never merely as a means.
177


As for autonomy, it is the property of a will that is free. It identifies the
individuals capacity for self-determination, in accordance with the representation of certain laws,
and it is a self-governing reason. The core idea is that individuals are subject only to the laws
they give themselves.
178
An autonomous person is one bound by his or her own will and not by
the will of someone else. According to Kant, free will is governed by reason, and reason is the
proper representation of moral laws.
179
Dignity, in the Kantian view, is grounded in autonomy.
180

Where all rational beings act according to the categorical imperative, i.e., as lawgivers whose

174
Id. at 25.
175
Id. at 31.
176
See MARILENA CHAU, CONVITE FILOSOFIA [INVITATION TO PHILOSOPHY] 346 (1999).
177
Kant, supra note 173, at 38. Although Kant affirms that there is just a single categorical imperative he presents
three different formulations of it (Id. at 43). The first one reproduced above is referred to as the formula of nature;
the second, as the formula of humanity. The third one, the formula of autonomy, states: [A]nd this is done in the
present third formula of the principle, namely the idea of the will of every rational being as a will giving universal
law.
178
Id. at 47.
179
These ideas become more complex and somewhat counterfactual when we add other elements of Kants moral
theory. For him, the supreme principle of morality consists of individuals giving themselves laws that they could will
to become universal law, an objective law of reason with no concessions to subjective motivations. Id. at 24.
180
Id. at 43.
35
maxims could become universal law the kingdom of ends, as Kant wrote everything has
either a price or a dignity.
181
Things that have a price can be replaced by other equivalent things.
But something that is above all price and cannot be replaced by another equivalent item has
dignity. Such is the unique nature of the human being. Condensed in a single proposition, this is
the essence of Kantian thought regarding our subject: moral conduct consists of acting moved by
a maxim that one could will to become universal law; every person is an end in him or herself
and shall not be instrumentalized by other peoples will; human beings have no price and cannot
be replaced, as they are endowed with an absolute inner worth called dignity.

C. MINIMUM CONTENT OF THE IDEA OF HUMAN DIGNITY

It is not easy to elaborate a transnational concept of human dignity that will
properly take into account the varied political, historical and religious circumstances that are
present in different countries. For this purpose, one must settle with an open-ended, plastic and
plural notion of human dignity. Roughly stated, this is my minimalist conception: human dignity
identifies (1) the intrinsic value of all human beings, as well as (2) the autonomy of every
individual, (3) limited by some legitimate constraints imposed on such autonomy on behalf of
social values or state interests (community value). These three elements will be analyzed in the
next section based on a philosophical perspective that is secular, neutral and universalist.
Secularism
182
means that church and state must be separate, that religion is a private matter of
each individual and that in political and public affairs a humanist rational view must prevail over

181
Id. at 42.
182
The term secularism was first used in GEORGE JACOB HOLYOAKE, THE ORIGIN AND NATURE OF SECULARISM 50
(1896).
36
religious conceptions.
183
Neutrality is a central argument in contemporary liberal thought,
meaning that the state must not take sides when different reasonable conceptions of the good life
are in question.
184
These notions of secularism and neutrality represent an effort to free human
dignity from any comprehensive religious or political doctrine, incorporating it into the idea of
public reason, which John Rawls has insightfully developed.
185


Finally, a few words on universalism, and its companion idea
multiculturalism. Multiculturalism means respect and appreciation for ethnic, religious or cultural
diversity. Since the final years of the twentieth century, it has become widely accepted that
multiculturalism is based on values not only consistent with but also required by liberal
democracies.
186
Minorities have the rights to their identities and differences, as well as the right
to be recognized. And human dignity no doubt supports such views. However, human dignity, in
its core meaning, also has a universalist ambition, representing the fabric that binds together the
human family. Some degree of enlightened idealism is necessary in this domain in order to
confront entrenched practices and customs of violence, sexual oppression and tyranny. To be

183
This view, of course, does not affect freedom of religion, and religious belief is indeed a legitimate option for
millions of people. See CHARLES TAYLOR, A SECULAR AGE 3 (2007). Regarding the desirable balance and mutual
tolerance, see NOAH FELDMAN, DIVIDED BY GOD: AMERICAS CHURCH-STATE PROBLEM AND WHAT WE SHOULD
DO ABOUT IT 251 (2005)
184
See, e.g., JOHN RAWLS, COLLECTED PAPERS 457 (1999). This argument, though, is far from universally accepted.
See, e.g., JOSEPH RAZ, THE MORALITY OF FREEDOM 117-121 (1986) [hereinafter Raz], claiming that neutrality is
impossible and chimerical. For a defense of liberal neutrality as a valid idea, see generally see Wojciech
Sadurski, Joseph Raz on Liberal Neutrality and the Harm Principle, 10 OXFORD J. LEGAL STUD. 125 (1990); Will
Kymlicka, Liberal Individualism and Liberal Neutrality, 99 ETHICS 883.
185
Public reason is a term that was first used by Kant in WHAT IS ENLIGHTENMENT (1784) and that was developed by
John Rawls, especially in his books A THEORY OF JUSTICE (1971) and POLITICAL LIBERALISM (1993). Public reason
stands for an essential notion in a pluralist liberal democracy, in which people are free to adhere to conflicting
reasonable comprenhensive doctrines. In such scenario, discussions and deliberations on the public political forum
by judges, government officials and even candidates for public office must be based on political conceptions that can
be shared by free and equal citizens. See JOHN RAWLS, THE LAW OF PEOPLES 131-180 (1999). I should add that
Rawls distinguishes public reason from secular reason, since he sees the latter as a comprehensive nonreligious
doctrine. Id., at 143.
37
sure, that is a battle of ideas, to be won with patience and perseverance. Troops will not do it.
187


Before moving on, I will restate in a slightly more analytic fashion a
previous comment. Human dignity and human (or fundamental) rights are closely connected, like
the two sides of a coin or, to use a common image, the two faces of Janus.
188
One is turned
toward philosophy, containing the moral values by which every person is unique and deserves
equal respect and concern; and the other is turned toward law, containing the individual rights.
This represents morals in the form of law or, as Jurgen Habermas put it, a fusion of moral
content with coercive law.
189
For this reason, in the next section, I try to identify for each
element within the core meaning of human dignity its moral content and its legal implications
regarding individual rights.

1. Intrinsic Value

Intrinsic value is, on a philosophical level, the ontological element of
human dignity, linked to the nature of being.
190
The uniqueness of human kind is the product of a
combination of inherent traits and features which include intelligence, sensibility and the ability

186
See generally, WILL KYMLICKA, MULTICULTURAL CITIZENSHIP: A LIBERAL THEORY OF MINORITY RIGHTS (1995).
187
In a inspired passage in which he cites Holmes, LOUIS MENAND, THE METAPHYSICAL CLUB: A STORY OF IDEAS IN
AMERICA 45 (2002) wrote:
Of course civilizations are aggressive, Holmes says, but when they take up arms in order to impose their
conception of civility on others, they sacrifice their moral advantage.
188
See Jrgen Habermas, The concept of human dignity and the realistic utopia of human rights, 41
METAPHILOSOPHY 464, 470 (2010).
189
Id. at 479.
190
Ontology is a branch of metaphysics that studies the fundamental characteristics of all things and subjects,
including what every human being has and cannot fail to have. It includes questions such as the nature of the
existence and structure of reality. See NICOLA ABBAGNANO, DICIONRIO DE FILOSOFIA [DICTIONARY OF
PHILOSOPHY] 662 (1988); and TED HONDERICH, THE OXFORD COMPANION TO PHILOSOPHY 634 (1995).
38
to communicate that give humans a special status in the world, distinct from other species.
191

Intrinsic value is the opposite of attributed or instrumental value,
192
because it is value that is
good in itself and has no price.
193
There is a growing awareness, however, that humankinds
special position does not warrant arrogance and indifference toward nature in general, including
the non-rational animals, which have their own kind of dignity.
194
The intrinsic value of all
individuals results in two basic postulates, one anti-utilitarian and the other anti-authoritarian.
The former consists of the formulation of Kants categorical imperative that every individual is
an end in him or herself, and not a means for collective goals or for the purposes of others. The
latter is synthetized in the idea that the state exists for the individual, and not the other way
around.
195
Because it has the intrinsic value of every person at its core, human dignity is, in the
first place, an objective value
196
that does not depend on any event or experience, and thus needs
not be granted and cannot be lost, even in the face of the most reprovable behavior. Also, as a
consequence, human dignity does not depend on reason itself, being present in the newborn, in

191
GEORGE KATEB, HUMAN DIGNITY 5 (2011) ([W]e can distinguish between the dignity of every human individual
and the dignity of the human species as a whole.).
192
See Daniel P. Sulmasy, Human Dignity and Human Worth, in PERSPECTIVES ON HUMAN DIGNITY: A
CONVERSATION 15 (Jeff Malpas and Norelle Lickiss, eds. 2007).
193
Kant, supra note 173, at 42.
194
See Martha Nussbaum, Human Dignity and Political Entitlements, in HUMAN DIGNITY AND BIOETHICS 365
(Essays Commissioned by the Presidents Council on Bioethics) [hereinafter Nussbaum). See also MARTHA
NUSSBAUM, FRONTIERS OF JUSTICE (2006); Philipp Balzer, Klaus Peter Rippe and Peter Schaber, Two Concepts of
Dignity for Humans and Non-Human Organisms In the Context of Genetic Engineering, 13 J. AGRICULTURAL &
ENVIRONMENTAL ETHICS 7 (2000).
195
The dignity of the state was part of the National-Socialist propaganda to discredit democratic institutions in
Germany. See Jochen Abr. Frowein, Human Dingity in International Law, in Kretzmer & Klein, supra note 18, at
123. The 1977 Constitution of the former Soviet Union referred to the dignity of Soviet citizenship (Art. 59) and to
national dignity (Art. 64). The Constitution of the Peoples Republic of China establishes that the state shall
uphold the dignity of the socialist legal system (Art. 5).
196
See RONALD DWORKIN, IS DEMOCRACY POSSIBLE HERE: PRINCIPLES FOR A NEW POLITICAL DEBATE 9-10 (2006)
[hereinafter Dworkin, Democracy) (![E]ach human life has a special kind of objective value. . . The success or
failure of any human life is important in itself . . . (and) we should all regret a wasted life as something bad in itself,
whether the life in question is our own or someone elses.!).
39
senile person or in incompetent people generally.
197


As for its legal implications, intrinsic value is the origin of a set of
fundamental rights. The first of them is the right to life, a basic pre-condition for the enjoyment
of any other right. Human dignity fulfills almost entirely the content of the right to life, leaving
space for only few specific controversial situations, such as abortion, assisted suicide and the
death penalty. A second right directly related to the intrinsic value of each and every individual is
equality before and under the law.
198
All individuals are of equal value and, therefore, deserve
equal respect and concern.
199
This means not being discriminated against due to race, color,
ethnic or national origin, sex, age or mental capacity (the right to non-discrimination) and respect
for cultural, religious or linguistic diversity (the right to recognition).
200
Human dignity fulfills
only part of the content of the idea of equality, and in many situations it can be acceptable to
differentiate among people. In the contemporary world, this is particularly at issue in cases
involving affirmative action and rights of religious minorities. Intrinsic value also leads to
another fundamental right, the right to integrity, physical and mental. The right to physical
integrity
201
includes the prohibition of torture, slave labor and degrading treatment or

197
This point of view departs from Kants assertion that human dignity is grounded on reason. See Kant, supra note
173, at 43.
198
See UDHR, articles II and VII; UN Covenant, articles 26 and 27; American Convention, art. 24; European
Charter, art. 20-23; and African Charter, art. 3. In the U.S. Constitution, the Equal Protection Clause is in the
Fourteenth Amendment.
199
RONALD DWORKIN, THE SOVEREIGN VIRTUE: THE THEORY AND PRACTICE OF EQUALITY 1-7 (2002).
200
On minority rights, multiculturalism and identity, see generally for different perspectives, NANCY FRASER,
REDISTRIBUTION OR RECOGNITION? A POLITICAL-PHILOSOPHICAL EXCHANGE (2003); AXEL HONNETH, THE
STRUGGLE FOR RECOGNITION: THE MORAL GRAMMAR OF SOCIAL CONFLICTS (1996).
201
See UDHR articles IV and V; UN Covenant, articles 7 and 8; American Convention, articles 5 and 6; European
Charter, articles 3 to 5; African Charter, articles 4 and 5.
40
punishment.
202
It is within the scope of this right that discussions on life imprisonment,
interrogation techniques and prison conditions take place. And finally, the right to mental
integrity,
203
which in Europe and in many civil law countries comprises the right to personal
honor and image, as well as to privacy. The idea of privacy in the United States, however, is
somewhat unique.
204


Throughout the world, there is a fair amount of case law involving the
fundamental rights that stem from human dignity as an intrinsic value. Regarding the right to life,
abortion is permitted in the early stages of pregnancy by most democracies in the North Atlantic
world, including the United States, Canada, France, United Kingdom and Germany. Human
dignity, in these countries, has not been interpreted as a reinforcement of the right to life of the
fetus against the will of its mother.
205
I will return to this in the final section of this Article.
Assisted suicide is illegal in most countries of the world, although the number of exceptions has
grown to include Holland, Belgium, Colombia and Luxembourg, among few others.
206
In the
United States it is allowed in the states of Oregon, Washington and Montana. The main concern
here is not the termination of life by the will of patients who are terminally ill, in persistent
vegetative states or under unbearable and unsurmountable pain, but the fear of abuse of

202
In the U.S. Constitution, most of these matters are dealt with under the Eighth Amendment ban on cruel and
unusual punishments.
203
See UDHR, articles VI and XII; UN Covenant, articles 16 and 17; American Convention, articles 11 and 18;
European Charter, art. 3; African Charter, art. 4.
204
In the United States Constitution, there is no express reference to privacy. In one sense, aspects of privacy are
protected by the Fourth Amendment ban on ureasonable searches and seizures. On the other hand, personal honor
and image rights do not have the status of constitutional rights, as in many countries and in the European Charter of
Fundamental Rights. Finally, United States case law treats under the label of privacy rights that in other countries fall
under the category of freedom or equality under the law, such as the right to use contraception and the right to
intimate acts between adults.
205
See Giovanni Bognetti, The concept of human dignity in European and U.S. constitutionalism, in EUROPEAN AND
U.S. CONSTITUTIONALISM (George Nolte, ed. 2005), at 99.
41
vulnerable people.
207
As for capital punishment, it has been banned in Europe and in most
countries in the world, the United States being a striking exception among democracies.
208
Although grounded in American historical tradition, it is difficult to argue that the death penalty
is compatible with respect for human dignity, as it is a complete objectification of the individual,
whose life and humanity succumb to the highly questionable public interest in retribution.

As for equality, the practice of affirmative action, for example, has been
upheld in countries such as the United States,
209
Canada
210
and Brazil,
211
and it is expressly
permitted by the Convention on the Elimination of All Forms of Racial Discrimination.
212
On the
other hand, the rights of religious minorities have suffered a setback, especially in Europe, where
the use of the full Islamic veil in public has been banned
213
or is object of serious discussions by
various member states.
214
In such countries, courts and legislators have failed to uphold
dignitarian concerns involving the right to identity with a minority group by finding this right to
be outweighed by alleged public interest concerns relating to security, cultural preservation and

206
For a survey of world laws on the matter, see http://www.finalexit.org/assisted_suicide_world_laws.html.
207
See e.g., Nussbaum, supra note 194, at 373.
208
According to the Amnesty International, more than two thirds of the countries in the world (96 at the end of 2010)
had abolished the death penalty in law or in practice. See http://www.amnesty.org/en/death-penalty/numbersi, access
on May 30, 2011.
209
In Grutter v. Bollinger, 539 U.S. 306 (2003).
210
R. v. Kapp, [2008] 2 S.C.R. 483, 2008 SCC 41.
211
In Brazil, some public universities have created a quota for racial minorities in their admissions processes. Even
though the Supreme Court has not issued its final decision, a preliminary injunction against the norms that permitted
such practice was not granted. The case is pending judgment. See STF, ADPF 186.
http://www.stf.jus.br/arquivo/cms/noticiaNoticiaStfArquivo/anexo/ADPF186.pdf.
212
See Art. 2.2. The convention entered into force on January 4, 1969
213
This is the case in France. The Constitutional Council validated the law that established the ban. See Decision n.
2010 613 DC of 7 October 2010.
214
See EU Leaders Dodge Islamic Veil Ban Issue, E.U. OBSERVER, July 19, 2010, available at
http://euobserver.com/9/30502.
42
womans rights. With regard to physical integrity or, using American terminology, cruel and
unusual punishment courts and authors have repeatedly proclaimed torture to be completely
inadmissible.
215
More recently, in the United States, the Supreme Court held that prison
overcrowding in the state of California violated the Eighth Amendment.
216
The majority opinion,
written by Justice Kennedy, made references to dignity, the dignity of man and human
dignity.
217
Finally, concerning mental integrity, the typical challenge in the contemporary world
involves the conflict between the right to privacy (as personal honor or image) and freedom of
expression, particularly for the press. Aspects of human dignity are present on both sides
dignity as intrinsic value versus dignity as autonomy and the outcomes in such cases are
influenced by different cultural perceptions. A recent example of this clash of legal cultures
occurred when New York police arrested a French public figure, who was then exposed to the
press handcuffed and required to make the perp walk. Although this is a common practice in
the United States, the episode was regarded by many as an unnecessary and abusive violation of
privacy.
218


2. Autonomy
219


215
See supra, note 56. See also Grimm, supra note 27, at 10-11 (A society commited to human dignity could never
defend itself through the denial of other peoples dignity.).
216
Brown v. Plata, 563 U.S. ___.
217
Id. at 12 (slip opinion).
218
See Sam Roberts, An American Rite: Suspects on Parade (Bring a Raincoat), N.Y. TIMES, May 20, 2011 at A17,
where a former French justice minister is quoted as having said that the behavior of the police was a brutality, a
violence, of an incredible cruelty.
219
See generally ROBERT POST, CONSTITUTIONAL DOMAINS: DEMOCRACY, COMMUNITY, MANAGEMENT 1-10 (1995)
(hereinafter Post, Domains); JOSEPH RAZ, THE MORALITY OF FREEDOM 155-56, 204-5, 369-81, 400-15 (1986)
(hereinafter Raz); RONALD DWORKIN, JUSTICE FOR HEDGEHOGS (hereinafter Dworkin, Hedgehogs), 4-19; JOHN
CHRISTMAN AND JOEL ANDERSON (EDS.), AUTONOMY AND THE CHALLENGES TO LIBERALISM, 1-19 [hereinafter
Christman & Anderson]; Richard H. Fallon, Jr. Two Senses of Autonomy, 46 STANFORD L. REV. 875 (1994)
[hereinafter Fallon]; Beate Rossler, Problems with Autonomy, 17 HYPATIA 143 (2002); Jack Crittenden, The Social
Nature of Autonomy, 55 REV. OF POLITICS 35 (1993); Robert Post, Dignity, Autonomy, and democracy, working
43

Autonomy is the ethical element of human dignity. It is the foundation of
the free will of individuals, which entitles them to pursue in their own ways the ideal of living
well and having a good life. The central notion is that of self-determination: an autonomous
person lays down the rules that will govern his or her life.
220
We have previously discussed the
Kantian conception of autonomy, which is the will governed by the moral law (moral autonomy).
We are now concerned with personal autonomy, which is value-neutral and means the free
exercise of will according to ones own values, interests and desires.
221
Autonomy requires the
fulfillment of certain conditions, such as reason (the mental capacity to make informed
decisions), independence (the absence of coercion, manipulation and severe want) and choice
(the actual existence of alternatives). Note that in the Kantian moral system, autonomy is the will
that suffers no heteronomous influence, and corresponds to the idea of freedom.
222
However, in
practical political and social life, individual will is constrained by the law and by social mores
and norms.
223
Thus, distinct from moral autonomy, personal autonomy, although at the origin of
freedom, only corresponds with its core content. Freedom has a larger scope that can be limited
by legitimate external forces. But autonomy is the part of freedom that cannot be suppressed by
state or social interference, involving basic personal decisions, such as choices related to religion,
personal relationships and political beliefs.

paper 2000-11 published by the Institute of Governmental Studies, available at
http://igs.berkeley.edu/publications/working_papers/WP2000-11.pdf [hereinafter Post, Dignity].
220
Post, Dignity, supra note 219, at 3.
221
The distinction is explored on Jeremy Waldron, Moral Autonomy and Personal Autonomy, in Christman &
Anderson, supra note 219, at 307-29. Fallon, supra note 219, separates autonomy into descriptive autonomy
(considering the effect of external causal factors on individual liberty) and ascriptive autonomy (representing each
persons sovereignty over his or her moral choices).
222
Kant, supra note 173, at 52 ([W]hat, then, can freedom of the will be other than autonomy?).
223
Post, Domains, supra note 219, at 1.
44

Autonomy, thus, is the ability to make personal decisions and choices in
life, based on ones conception of the good, without undue external influences. As for its legal
implications, autonomy underlies a set of fundamental rights associated with democratic
constitutionalism, including basic freedoms (private autonomy) and the right of political
participation (public autonomy).
224
With the rise of the welfare state, many countries in the world
would also consider in the equation that results in true and effective autonomy a fundamental
social right to minimum living conditions (the existential minimum). We will thus discuss,
briefly, each of these three ideas: private autonomy, public autonomy and existential minimum.
Private autonomy is the key concept behind individual freedom, including that which in the
United States is usually protected under the label of privacy. Therefore, freedom of religion,
speech, and association, as well as sexual and reproductive rights, are important expressions of
private autonomy. Of course, private autonomy does not entail absolute rights.
225
It is worth re-
emphasizing that autonomy is only at the core of different freedoms and rights; it does not
occupy the entire range. For example, as a result of freedom of movement, a free individual can
choose where she is going to establish her home, a major personal choice; just as well, she will
usually decide where to spend her next vacation. But if a valid law or regulation prohibits her
from visiting a particular country say, North Korea or Afghanistan no one would think, at
least in principle, that the restriction is a violation of her human dignity. Finally, there can be

224
This distinction is the cornerstone of the reconstructive approach to law of Jurgen Habermas, Germans most
prominent contemporary philosopher. See Habermas, supra note 161, at 84-104.
225
Indeed, freedom of religion may be limited in the public sphere; freedom of speech may be regulated when the
target is commercial speech, and freedom to terminate pregnancy may be restricted after a certain point in the fetus
development.
45
clashes between the autonomy of different individuals,
226
as well as between autonomy, on the
one hand, and intrinsic value or community value, on the other.
227
So, private autonomy, as an
essential element of human dignity, offers a good standard for defining the content and scope of
freedom and rights, but does not free legal reasoning from weighing complex facts and taking
into account apparently contrasting norms in order to strike a proper balance under the
circumstances.

Private autonomy, as we have seen, stands for individualized self-
government.
228
This is what Benjamin Constant has called the liberty of the moderns, based on
civil liberties, the rule of the law and freedom from abusive state interference.
229
Public
autonomy, on its turn, has to do with the liberty of the ancients, a republican liberty associated
with citizenship and participation in political life. Ancient Greeks felt a moral obligation toward
citizenship and invested a substantial part of their time and energy in public affairs, which was
facilitated by the fact that slaves did most part of the work.
230
As democracy is a partnership in
self-government,
231
it requires an interrelation between individual citizens and the collective
will.
232
This means that every citizen has the right to participate directly or indirectly in
government. Along these lines, public autonomy entails the right to vote, to run for office, to be a

226
An example: the right to consume a legal product, such as cigarrette, versus someone elses right to not become
an involuntary passive smoker.
227
As when, for example, the will of the patient to terminate his own life is thwarted by the duty of the physician to
protect life or by the social/legal perception that this is an unacceptable decision.
228
Christman & Anderson, supra note 219, at 14 (comparing liberal and republican approaches as a division
between autonomy as individualized self-government and autonomy as collective, socially instituted self-
legislation).
229
Benjamin Constant, The Liberty of Ancients Compared with that of Moderns (1816), available at
http://www.uark.edu/depts/comminfo/cambridge/ancients.html.
230
Id.
231
Dworkin, Democracy, supra note 196, at xii.
46
member of political organizations, to be active in the social movement and, particularly, the right
and the conditions to play a part in the public discourse. Ideally, thus, the law to which every
individual needs to abide to will have been created with his participation, assuring him the status
of an autonomous citizen, and not a heteronomous subject.
233
Regarding public autonomy, an
important decision by the European Court of Human Rights has ruled that the United Kingdoms
law denying prisoners the right to vote was in violation of the European Convention on Human
Rights.
234
Although the decision has been strongly questioned by Members of the British
Parliament,
235
the Court has properly established that prisoners in general continue to enjoy the
fundamental rights guaranteed by the Convention [including the right to vote], except for the
right to liberty.
236


Finally, attached to the idea of human dignity is the concept of existential
minimum,
237
also referred to as social minimum
238
or the basic right to the provision of adequate
living conditions.
239
Equality, in a substantive sense, and especially autonomy (private and

232
Post, Dignity, supra note 219, at 8.
233
Id. at 9.
234
See Hirst v. The United Kingdom - 74025/01 [2005] ECHR 681, 42 EHRR 41, (2006) 42 EHRR 41. Also
avaiable at http://www.bailii.org/eu/cases/ECHR/2005/681.html.
235
See Molly M. Hofsomme, The UK defies European Court of Human Rights by Denying All Prisoners the Right to
Vote, THE HUMAN RIGHTS BRIEF, April 23, 2011. Available at http://hrbrief.org/2011/04/the-uk-defies-european-
court-of-human-rights-by-denying-all-prisoners-the-right-to-vote/, (last visited June 14, 2011).
236
See Hirst v. The United Kingdom - 74025/01 [2005] ECHR 681, 42 EHRR 41, (2006) 42 EHRR 41. Also
avaiable at http://www.bailii.org/eu/cases/ECHR/2005/681.html.
237
This is the literal translation of the term used by German authors and courts (Existenzminimum). See Alexy,
supra note 153, at 290 ([T]here can hardly be any doubt that the Federal Constitutional Court pressuposes the
existence of a constitutional court right to an existential minimum.).
238
JOHN RAWLS, POLITICAL LIBERALISM 228-9 (2005) (. . . [A] social minimum for the basic needs of all citizens is
also an essential . . .).
239
Habermas, supra note 163, at 123 (Basic rights to provision of living conditions that are socially,
technologically, and ecologically safeguarded. . .).
47
public), are ideas dependent on the fact that individuals are free from want,
240
meaning that
their essential vital needs are satisfied. To be free, equal and capable of exercising responsible
citizenship, individuals need to pass minimum thresholds of well being, without which autonomy
is a mere fiction. This requires access to some essential utilities such as basic education and
health care services as well as some elementary necessities, such as food, water, clothing and
shelter. The existential minimum, thus, is the core content of social and economic rights, whose
existence as actual fundamental rights and not mere privileges dependent on the political
process is rather controversial in some countries. Its enforceability is complex and cumbersome
everywhere. Notwithstanding these challenges, the idea of minimum social rights that can be
protected by courts, and which are not entirely dependent on legislative action, has been accepted
by case law in several countries, including Germany,
241
South Africa
242
and Brazil.
243


In the United States, the issue was raised for the first time in a famous
speech by President Franklin Delano Roosevelt
244
and in his subsequent proposal for The
Second Bill of Rights, presented on January 11, 1944 with express references to the rights to

240
In his State of the Union address, on January 4, 1941, President Franklin D. Roosevelt proposed four freedoms
that people everywhere in the world should enjoy, which included freedom of speech, freedom of worship,
freedom from want and freedom from fear. See full text of the speech at
http://americanrhetoric.com/speeches/PDFFiles/FDR%20-%20Four%20Freedoms.pdf (last visited June 15, 2011).
241
See, e.g., 1 BVerfGE 97,104 e seq. (1951); 1 BVerwGE 159, 161 (1954); 25 BVerwGE 23, 27 (1966); 40
BVerfGE121, 134 (1975); and 45 BVerfGE 187 (229) (1977).
242
The Grootboom case involved access to adequate housing (The Government of the Republic of South Africa and
others v. Irene Grootboom and others) (CCT38/00) [2000] ZACC 14; 2011 (7) BCLR 651 (CC) (21 September
2000); The Mazibuko case involved the access to sufficient water (Mazibuko and Others v City of Johannesburg and
Others (CCT 39/09) [2009] ZACC 28; 2010 (3) BCLR 239 (CC); 2010 (4) SA 1 (CC); 2011 (7) BCLR 651 (CC) (8
October 2009).
243
In Brazil, there is case law relating to access to education (STF, RE [Extraordinary Appeal] 410715, DJU
February 3, 2006); to health care and medicines (STF, STA [Stay of Preliminary Order] 175/CE, DJe April 29, 2010;
and to affirmative action in favor of disabled persons (STF, ADI [Direct Action of Unconstitutionality] 2649/DF,
DJe October 16, 2008).
244
See supra note 240.
48
adequate food, clothing, a decent home, medical care and education.
245
Although Roosevelt
thought that the implementation of these second generation rights was a duty of Congress, not of
the courts, Cass Sunstein has convincingly argued that a string of Supreme Court decisions came
very close to acknowledge some social and economic rights as true constitutional rights, in cases
decided between the early 1940s and the early 1970s.
246
According to Sunstein, a
counterrevolution occurred after Richard Nixon was elected president in 1968, especially through
President Nixons appointees to the Supreme Court.
247
As a consequence, the Courts case law
became more aligned with the traditional and dominant view in American law that fundamental
rights do not entitle individuals to positive state action. More recently, the 2010 health reform law
reignited this debate. My argument here is that the existential minimum is at the core of human
dignity, and that autonomy cannot exist where choices are dictated solely by personal needs.
248

And, thus, that the very poor must be granted constitutional protection.
249


3. Community value

The third and final element, human dignity as community value, also

245
The proposal was also presented in a State of the Union Address, when he announced a plan for a bill of social
and economic rights.
246
CASS SUNSTEIN, THE SECOND BILL OF RIGHTS: FDRS UNFINISHED REVOLUTION AND WHY WE NEED IT MORE
THAN EVER, 154 et seq. (2004), citing cases such as Griffin v. Illinois, 351 U.S. 12 (1956) (holding that the equal
protection clause requires states to provide trial transcripts at no cost to poor people appealing their criminal
convictions), Gideon v. Wainright, 372 U.S. 335 (1963) (holding that states are required to provide defense lawyers
in criminal cases for defendants that cannot afford one), Douglas v. California, 372 U.S. 353 (1963) (holding that an
indigent must be provided with counsel on his first appeal of a crimnal conviction), Shapiro v. Thompson, 394 U.S.
618 (1969) (the Court struck down a state law that imposed a one-year waiting period before a new arrival to the
state could apply for welfare benefits) and Goldberg v. Kelly, 397 U.S. 254 (1970) (holding that the termination of
welfare benefits without a hearing violated the due process clause).
247
Id. at 163.
248
Raz, supra note 184, at 155 (Their [the agents] choices must not be dictated by personal needs).
49
referred to as dignity as constraint or dignity as heteronomy, relates to the social dimension of
dignity. The contours of human dignity are shaped by the relationship of the individual with
others, as well as with the world around him. Autonomy protects the person from becoming just a
gear in the engine of society. However, no man is an island, entire of itself, as the English poet
John Donne wrote in a famous quote.
250
The term community value, which is quite ambiguous, is
used here, by convention, to identify two different external forces that act on the individual: (1)
the shared beliefs, interests and commitments
251
of the social group and (2) state-imposed
norms. The individual, thus, lives within himself, within a community and within a state. His
personal autonomy is constrained by the values, rights and mores of people who are just as free
and equal as him, as well as by coercive regulation. Autonomy, community and state. In an
insightful book, Robert Post identified, in a similar fashion, three distinct forms of social order:
community (a shared world of common faith and fate), management (the instrumental
organization of social life through law to achieve specific objectives) and democracy (an
arrangement that embodies the purpose of individual and collective self-determination).
252
These
three forms of social order presuppose and depend on each other, but are also in constant
tension.
253


Dignity as a community value, therefore, emphasizes the role of state and

249
Dworkin, Democracy, supra note 196, at 8 ([T]he very poor should be regarded, like a minority and
disadvantaged race, as a class entitled to special constitutional protection.).
250
See JOHN DONNE, DEVOTIONS UPON EMERGENT OCCASIONS (1624), available at
http://www.ccel.org/ccel/donne/devotions.iv.iii.xvii.i.html (Meditation XVII: No man is an island, entire of itself;
every man is a piece of the continent, a part of the main. . . any mans death diminishes me, because I am involved in
mankind, and therefore never send to know for whom the bells tolls; it tolls for thee.).
251
PHILIP SELZNICK, THE MORAL COMMONWEALTH: SOCIAL THEORY AND THE PROMISE OF COMMUNITY 358 (1992).
252
Post, Domains, supra note 219, at 2-3, 15.
253
Id. at 2.
50
community in establishing collective goals and restrictions on individual freedom and rights, on
behalf of a certain idea of the good life. The relevant question here is, in what circumstances and
to what degree should these actions be regarded as legitimate in a constitutional democracy? The
liberal predicament that the state must be neutral with regard to different conceptions of the good
in a pluralist society
254
is not incompatible, of course, with limitations resulting from the
necessary coexistence of different views and potentially conflicting rights. Such interferences,
however, must be justified on grounds of a legitimate idea of justice, an overlapping consensus
255

that can be shared by most individuals and groups. Community value, as a constraint on personal
autonomy, has sought legitimacy through the pursuit of three goals: (1) the protection of the
rights and dignity of others; (2) the protection of the rights and dignity of oneself; and (3) the
protection of shared social values. In their studies on bioethics and biolaw, Beyleveld and
Brownsword explored in depth this conception of human dignity as constraint, centered around
the ideas of duties and responsibilities, as opposed to human dignity as empowerment, which is
essentially concerned with rights.
256


It is not difficult to understand and justify the existence of a concept such
as community value giving content to and shaping the contours of human dignity, along with
intrinsic value and autonomy. The goals it aims to achieve are legitimate and desirable, if the
lines are properly drawn. The critical problem here is the risks involved. Regarding the first goal
protection of the rights and dignity of others any civilized society imposes criminal and civil

254
See RONALD DWORKIN, A MATTER OF PRINCIPLE 183, 191 (1985).
255
Overlapping consensus is a term coined by John Rawls that identifies basic ideas of justice that can be shared
by supporters of different religious, political and moral comprenhesive doctrines. See John Rawls, The Idea of
Overlapping Consensus, 7 OXFORD J. LEGAL STUD. 1 (1987).
51
sanctions to safeguard values and interests relating to life, physical and emotional integrity and
property, among others. It is beyond doubt, thus, that personal autonomy can be restricted to
prevent wrongful behavior, be it on behalf of the idea of the harm principle developed by John
Stuart Mill
257
or on the broader concept of the offense principle defended by Joel Feinberg.
258
To
be true, the power to punish can be employed in an abusive or disproportional way, and it often
is. But its necessity, even in the most liberal societies, is not contested. The other goals, however
protection of oneselfs and of shared social values entail severe risks of paternalism
259
and
moralism.
260
It is largely recognized that some degree of paternalism is acceptable,
261
but the
boundaries of such interference in order for it to be legitimate have to be settled with great
restraint. As for moralism, it is also acceptable that a democratic society may employ its coercive
power to enforce some moral values and collective goals.
262
But here again, and for stronger
reasons, the boundaries must be tightly maintained to protect against the grave risk of a moral
majoritarianism or tyranny of the majority.
263
The legitimacy and limits associated with

256
DERYCK BEYLEVELD AND ROGER BROWNSWORD, HUMAN DIGNITY IN BIOETHICS AND BIOLAW 29-46, 65 (2001);
Deryck Beyleveld and Roger Brownsword, Human Dignity, Human Rights, and Human Genetics, 61 MOD. L. REV.
1998.
257
JOHN STUART MILL, ON LIBERTY 21-22 (1874) [hereinafter Mill], expresses the classical liberal view and founds
the limit of the states legitimate authority on the notion of harm.
258
JOEL FEINBERG, OFFENSE TO OTHERS 1 (1985). Feinberg argues that the harm principle is not sufficient to protect
individuals against the wrongful behaviors of others, and has developed a more comprehensive concept of offense
principle, maintaining that preventing shock, disgust, embarassment and other unpleasant mental states is also a
relevant reason for legal prohibition.
259
Gerald Dworkin defines paternalism as the interference of a state or an individual with another person, against
their will, and defended or motivated by a claim that the person interfered with will be better off or protected from
harm, in Dworkin, Gerald, "Paternalism", The Stanford Encyclopedia of Philosophy (Summer 2010 Edition),
Edward N. Zalta (ed.), URL = <http://plato.stanford.edu/archives/sum2010/entries/paternalism/>.
260
The most well-known defense of legal moralism was made by PATRICK DEVLIN, THE ENFORCEMENT OF MORALS
10 (1965) [hereinafter Devlin].
261
Examples often cited are compulsory education for children, use of seat-belts and motorcicle helmets. See
Dworkin, Hedgehogs, supra note 219, at 336.
262
To mention some fairly indisputable examples, consider the ban on hard drugs, a fair degree of environmental
protection and the prohibiton of animal cruelty.
263
Mill, supra note 257, at 13.
52
protection of shared morality were the object of an important exchange between Patrick Devlin
and H.L.A. Hart.
264


Dignity as community value, often inspired by paternalistic or moralistic
motivations, has underlied decisions throughout the world. One of the most famous of such
decisions was the holding in the Dwarf-tossing case. The Mayor of a town near Paris banned the
bar attraction lancer de nain, by which a dwarf, wearing a protective gear, was thrown short
distances by customers. The case reached the Conseil dtat (Council of the State), which held
the prohibition to be legitimate, based on defense of the public order and protection of human
dignity.
265
The dwarf opposed the ban on all instances and took the case to the Human Rights
Committee (United Nations), which did not find the measure to be abusive.
266
A second well-
known decision involves the Peep Show case, handed down by the German Federal
Administrative Court.
267
The Court upheld the denial of license to conduct the attraction, in
which a woman performs a striptease before an individual placed in a one-person cabin. With
payment, the stage would become visible to the patron, but the woman could not see him. The
license was refused on grounds of violation of good morals, since such a performance violated
the human dignity of the women displayed, who would be degraded to the level of an object.
268
A

264
See H.L.A. HART, LAW, LIBERTY AND MORALITY 5, 50 (1963) [hereinafter Hart]; and Devlin, supra note 260, at
10.
265
Conseil dtat, Decision 136727, Octobre 27, 1995. See also LONG, WIL, BRAIBANT, DEVOLV E GENEVOIS, LE
GRANDS ARRTS DE LA JURISPRUDENCE ADMINISTRATIVE [THE GREAT DECISIONS OF ADMINISTRATIVE CASE LAW]
790 et seq. (1996).
266
Human Rights Committee, Wackenheim v. France, CCPR/C/75/D/854/1999, July 15 2002. The decision has been
criticized worldwide with the argument that dignity as autonomy should have prevailed. See Rousseau, supra note
41, at 66-68; and Stphanie Hennette-Vauchez, When Ambivalent Principles Prevail: Leads for Explaining Western
Legal Orders Infatuation with the Human Dignity Principle, 10 LEGAL ETHICS 193, 207, 208 (2007), at 206.
267
4 BVerwGE 274 (1981).
268
In an outright rejection of the argument of autonomy, the Court stated that the fact that the woman acted
voluntarily did not exclude the violation. Id.
53
third case involved the prosecution of a group of people in the United Kingdom accused of
assault and wounding during sadomasochistic encounters. Although the activities were
consensual and conducted in private, the House of Lords held that the existence of consent was
not a satisfactory defense where actual body harm had occurred.
269
The ECrHR found no
violation of the Convention.

There are several morally and legally controversial issues relating to
community value. One of them is prostitution. In South Africa, a divided Constitutional Court
held that a law that made carnal intercourse for reward a crime is constitutional.
270
In Canada,
the Supreme Court upheld a provision of the Criminal Code that prohibited communications in
public for the purpose of prostitution, a distinct but related issue.
271
Both courts upheld bans on
brothels and bawdy houses. Taking a different perspective, the Constitutional Court of Colombia
has held that prostitution is a tolerated social phenomenon, that prostitutes are a historically
discriminated-against group deserving of special protection and that voluntary sex work, under
subordination to and payment by a bar owner, constitutes a de facto labor contract.
272
Another
polemic matter that challenges the proper boundaries between dignity as autonomy and dignity as

269
Laskey, Jaggard, and Brown v. The United Kingdom. [1997] Case No. 109/1995/615/703-705. Available at
http://worldlii.org/eu/cases/ECHR/1997/4.html. The dissent countered that the adults were able to consent to acts
done in private which did not result in serious bodily harm and criticized the Courts paternalism.
270
Jordan and Others v. State (CCT 31/01) [2002] ZACC. Available at
http://www.constitutionalcourt.org.za/Archimages/661.PDF. The minority pointed out, however, that the law
constituted unfair discrimination against women by making the prostitute the primary offender and the patron at most
as an accomplice.
271
Reference re ss. 193 and 195.1(1)(C) of the criminal code (Man.), [1990] 1 S.C.R. 1123. Available at
http://scc.lexum.org/en/1990/1990scr1-1123/1990scr1-1123.html.
272
Corte Constitucional de Colombia [Constitutional Court of Colombia]. Sentencia [Judgment] T-62910. LAIS v.
Bar Discoteca PANDEMO. Available at http://www.corteconstitucional.gov.co/RELATORIA/2010/T-629-10.htm.
At the bottom line, the main discussion is whether individual prostitution is a matter of personal autonomy, and thus
constitutionally protected, or whether, on the other hand, it is a matter that is primarily to be governed by the
legislature.
54
shaped by heteronomous forces is the decriminalization of drugs. The matter was extensively
discussed in a 2003 divided decision by the Supreme Court of Canada, which held that
Parliament could validly criminalize and punish with imprisonment the possession of
marijuana.
273
A number of countries have adopted,
274
and several world leaders have advocated
for, the decriminalization of drugs, particularly so-called light drugs.
275
Another complex and
sensitive issue involves hate speech. In most democratic countries, speech aimed at the
depreciation of vulnerable groups or individuals, based on ethnicity, race, color, religion, gender
and sexual orientation, among other characteristics, is not acceptable and is not within the range
of protection for freedom of expression. The United States, in this particular instance, is a solitary
exception.
276


The coercive imposition of external values, exceptioning the plain exercise
of autonomy in the name of a communitarian dimension of human dignity, is never trivial. It
requires adequate justification, which must take into account three elements: (a) the existence of a
fundamental right being affected; (b) the potential harm to others and to oneself; and (c) the level
of societal consensus on the matter. As for the verification of the presence of a fundamental right,

273
R. v. Malmo!Levine; R. v. Caine, [2003] 3 S.C.R. 571, 2003 SCC 74. Three justices dissented, stressing that the
harm posed to others by marijuana consumption is not significant and does not justify imprisonment, that harm to
self should not be criminally punished, and that the harm of prohibiting marijuana far outweighed its benefits.
274
E.g., The Netherlands, Portugal and Australia. See Brian Vastag, 5 years after: Portugals Drugh
Decriminalization Policy Shows Positive Results, AMERICAN SCIENTIFIC, April 7, 2009. Available at
http://www.scientificamerican.com/article.cfm?id=portugal-drug-decriminalization. For a survey of other countries,
see Drug Liberalization, WIKEPEDIA, available at http://en.wikipedia.org/wiki/Drug_liberalization.
275
As the former Presidents of Brazil, Colombia, Mexico, Switzerland, the Prime-Minister of Greece, former UN
Secretary-General Kofi Annan, Geroge Shultz and Paul Volcker among others. See Global Commission on Drug
Policy at www.globalcommissionondrugs.org.
276
For a reflection on the clash between free speech and equality, see Martha Minow, Equality Under the Bill of
Rights, in Meyer & Parent, supra note 122, at 125. See also Frederick Schauer, The Exceptional First Amendment
(February 2005). KSG Working Paper No. RWP05-021. Available at SSRN: http://ssrn.com/abstract=668543 or
doi:10.2139/ssrn.668543.
55
it is appropriate to make a distinction between two different views and respective terminology.
Some authors acknowledge the existence of a general right to freedom (or liberty), along with
specific and express freedoms, such as freedom of expression, religion and others.
277
The general
right to liberty means a general freedom of action that can, however, be limited by any legal norm
that is compatible with the constitution. Restrictions on such a general right requires just a
rational basis, a legitimate state interest or collective goal. Some other authors, particularly
Ronald Dworkin, employ a narrower concept of basic not general freedoms, which
correspond with moral rights; they are the true substantive fundamental rights. Basic freedoms
are to be treated as trumps
278
against majority rule, and restrictions on them must pass strict
scrutiny. Thus, general freedom can be broadly limited, but basic freedoms should usually prevail
over collective goals, in all other than exceptional circumstances.
279


The risk of harm to others is usually a reasonable ground to limit personal
autonomy. It is broadly accepted today that Mills formulation of the harm principle as the only
justification for state interference with individual freedom may well be too simple
280
and that
multiple criteria
281
will determine when liberty can be restricted. But harm to others enjoys a
fair presumption as to the legitimacy of the restriction. Harm to oneself may also be an acceptable
ground for limiting personal autonomy, as mentioned before, but in this case the burden of
demonstrating its legitimacy will usually be on the state, since paternalism should normally raise

277
See Alexy, supra note 153, at 224. Alexy draws from the idea of legality that is dominant in most civil law
countries, meaning that everyone can do anything that is not prohibited by valid norms.
278
Ronald Dworkin, Rights as Trumps, in THEORIES OF RIGHTS 153 (Jeremy Waldron, ed. 1984).
279
Dworkin, supra note 152, at 92. For an insightful discussion on the views of general right to liberty and basic
freedoms, see sorry, it is in Portuguese LETCIA DE CAMPOS VELHO MARTEL, DIREITOS FUNDAMENTAIS
INDISPONVEIS [INDISPOSABLE FUNDAMENTAL RIGHTS] 94 et seq. (2011).
280
H.L.A. HART, MORALITY AND THE LAW 51 (1971).
56
suspicion. Finally, the limitation of personal autonomy on grounds of public morals requires
strong societal consensus. The ban on child pornography even in case of graphic depiction,
without an actual child involved or the prohibition of incest, are serious candidates for this
consensus. But in a pluralist and democratic society, there will always be moral disagreements.
Questions like capital punishment, abortion or gay marriage will always be disputed. A brief
reflection on this subject is called for before closing this section.
282


Not even the moral realists, who believe that moral claims can be true or
false a highly contested issue in the philosophical debate fail to acknowledge that their belief
is not applicable to all moral truths.
283
Thus, there will always be moral disagreement, meaning
that in many situations there is no objective moral truth. Despite their different conceptions,
citizens must coexist and cooperate, bound together by a framework of basic freedoms and rights.
The role of the state when interpreting community values is to uphold those that are genuinely
shared by the people and avoid, whenever possible, choosing sides in morally divisive
disputes.
284
One good reason for this abstention is that letting one group impose its moral view
over others poses a challenge to the ideal that all individuals are equal and free. There are
certainly disputed political issues that will have to be settled by the majority, such as choices
involving environmental protection and economic development, the use of nuclear energy or
limits on affirmative action. But truly moral issues should not be decided by majorities. The
majority, for example, has no right to say that gay sex is a crime, as was once held by the United

281
Id.
282
On moral realism and moral disagreement, see generally FOLKE TERSMAN, MORAL DISAGREEMENT (2006);
Arthur Kuflik, Liberalism, Legal Moralism and Moral Disagreament, 22 J. APPLIED PHILOSOPHY 185 (2005); David
Enoch, How Is Moral Disagreement a Problem for Realism, 13 J. ETHICS 15 (2009) [hereinafter Enoch].
283
Enoch, supra note 282, at 16.
57
States Supreme Court in Bowers v. Hardwick.
285
Of course there will be cases in which it will not
be easy to draw the line between what is political and what is truly moral, and, indeed, many
times the two domains will overlap. But whenever a significant moral issue can be identified, the
best thing for the state to do is to lay down a framework that allows individuals on both sides to
exercise personal autonomy. The battlefield in such cases should remain within the realm of ideas
and rational persuasion. In the next section some of these ideas will be applied to a set of
controversial cases.

IV. USING HUMAN DIGNITY TO STRUCTURE LEGAL REASONING IN HARD CASES

A. ABORTION

Voluntary termination of pregnancy is a highly controversial moral issue
all over the world. The legislation of different countries ranges from total prohibition and
criminalization to practically unrestricted access to abortion. Strikingly, abortion rates in
countries where the procedure is legal are very similar to the rates in countries where it is illegal.
Indeed, the main difference between countries that have chosen criminalization versus
decriminalization is the incidence of unsafe abortion.
286
Criminalization has also been found to
result in de facto discrimination against poor women, who must resort to primitive methods of
ending pregnancy due to lack of access to either private or public medical assistance. Abortion,

284
See Post, Domains, supra note 219, at 4.
285
478 U.S. 186 (1986). Critique of this decision was the point of departure from an insightful article by Frank
Michelman, viewed as a canonical text on the second wave of republican legal scholarship (David Kennedy and
William Fisher III, in THE CANON OF AMERICAN LEGAL THOUGHT 15 (David Kennedy and William Fisher III, eds.
2006), at 781). See Frank Michelman, 97 YALE L. J. 1493 (1988).
58
usually in the first trimester, was broadly removed from criminal codes, starting with Canada, in
1969, the United States, in 1973,
287
and France, in 1975. Several other countries then followed
this trend, including Austria (1975), New Zealand (1977), Italy (1978), the Netherlands (1980)
and Belgium (1990). In Germany, a rather ambiguous judicial decision in 1993 led to the non-
punishment of abortion in the first trimester, provided certain conditions are met. In fact, almost
all countries in the richer North Atlantic world have decriminalized abortion in early stages of
pregnancy, rendering total prohibition a policy that prevails only in the countries of the
developing world. The Catholic Church and many Evangelical Churches strongly oppose
abortion, based on the belief that life begins at conception and should be inviolable beginning at
that point. Yet, many people who personally believe that abortion is morally wrong still favor its
decriminalization for philosophical or pragmatic reasons. The next paragraphs discuss the
relationship between abortion and human dignity, taking into account intrinsic value, autonomy
and community value, and the rights and duties associated with each of these elements.

At the intrinsic value level, the abortion debate represents a clash between
fundamental values and rights. For those who believe that a fetus should be treated as human life
beginning at fertilization and this premise must be assumed here for the sake of the argument
abortion clearly is a violation of the fetus right to live. This is the main ground underlying the
pro-life movement, and supports its conclusion that abortion is morally wrong. On the other hand,
pregnancy and the right to terminate it implicate the physical and mental integrity of the woman,
her power to control her own body. Moreover, abortion must also be considered an equal

286
See Susan A. Cohen, New Data on Abortion Incidence, Safety Illuminate Key Aspects of Worldwide Abortion
Debate, 10 GUTTMACHER POLICY REVIEW, available at http://www.guttmacher.org/pubs/gpr/10/4/gpr100402.html.
287
In the United States, the plurality decision in Casey (1992) revised the Roe rule of priority for the womans
interest during the first trimester and replaced the strict scrutiny test, which was the standard in matters of
59
protection issue,
288
because only women bear the full burden of pregnancy and the right to
terminate it puts them on a level playing field with men. Therefore, with regard to human dignity
viewed as intrinsic value, there is one fundamental right favoring the anti-abortion position the
right to life countered by two fundamental rights favoring the position of the womans right of
choice physical and mental integrity and equal protection of the law.
289


As far as autonomy is concerned, we must consider what role self-
determination plays in the context of abortion. Individuals must be free to make basic personal
decisions and choices regarding their lives. Reproductive rights and child rearing are certainly
among these decisions and choices. The right to privacy, as established by the United States
Supreme Court decisions about abortion, has been described as the principle of public toleration
of autonomous, self-regarding choice.
290
It is within the autonomy of a woman and, thus, at the
core of her basic freedoms, to decide for herself whether or not to have an abortion. The will of
the mother to terminate her pregnancy could be countered by a hypothetical will of the fetus to be
born. One could speculate, hence, that there would be a clash of autonomies between the woman
and the fetus. Two objections could be made to this line of thinking. The first objection is that,
although the intrinsic value of the fetus has been assumed in the previous paragraph, it might be

fundamental rights, with the less rigorous "undue burden" test.
288
As Robin West wrote, the preferred moral foundation of the abortion right shifts from marital and medical
privacy, to womens equality, to individual liberty or dignity, and back. See Robin West, From Choice to
Reproductive Justice: De-Constitutionalizing Abortion Rights, 118 YALE L.J. 1394, 1396 (2009).
289
For a thoughtful analysis of the use of dignity in the context of abortion, see generally Reva Siegel, Dignity and
Politics of Protection: Abortion Restriction Under Casey/Carhart, 117 YALE L.J. 1694, 1736-1745 (2008). The
author compares the decision in Casey, in which dignity was invoked as a reason for protecting womens right to
choose an abortion, and the decision in Carhart, in which dignity was invoked as a reason for woman-protective
abortion restrictions. The Article criticizes the latter for gender paternalism and unconstitutional stereotypes about
womens roles and capacities. Id. at 1773 and 1796.
290
Anita L. Allen, Autonomys Magic Wand: Abortion and Constitutional Interpretation, 72 BOSTON U. L. REV.
683, 690 (1992).
60
more difficult to acknowledge its autonomy, due to the fact that he does not have any degree of
self-consciousness. But even if this argument could be superseded, there remains another.
Because the fetus depends on the woman, but not the other way around, if the will of the fetus
prevailed she would be totally instrumentalized by its project. In other words, if a woman were to
be forced to keep a fetus she did not want, she would have been transformed into a means for the
satisfaction of someone elses will, and not treated as an end in herself.

Finally, at the community value level, it is necessary to determine whether
autonomy can be curtailed on behalf of (1) shared values by the social group or by (2) state
interests imposed by legal norms. Abortion is arguably the most divisive moral issue in public
life today. As mentioned above, most countries in North America and in Europe have
decriminalized abortion in the early stages of pregnancy. On the other hand, most countries in
Africa (excluding South Africa) and Latin America impose dramatic restrictions on abortions at
any stage. The fact that important and respectable religious groups oppose abortion, based on
their faith and dogmas, does not overcome the objection that those are not arguments that fit
within the realm of public reason.
291
Such being the case, one cannot find a significant societal
consensus on the matter. In fact, the only clearly perceivable conclusion is that abortion is a point
of major moral disagreement in contemporary society. In such circumstances, the proper role for
the state is not to take sides and impose one view, but allow individuals to make autonomous
choices. In other words, the state must value individual autonomy and not legal moralism. As the
United States Supreme Court stated in Roe, the states interest in protecting prenatal life and
protecting the mothers health does not outweigh the fundamental right of a woman to have an

291
See note 185.
61
abortion. There are two other strong arguments in favor of legalization. The first is the difficulty
of enforcing the prohibition, as statistics show.
292
The second is the discriminatory impact that a
ban on abortion has on poor women.
293
Decriminalization does not preclude social forces that
oppose abortion from advocating their views. In fact, many communities within countries that
have legalized abortion treat it as a social taboo and use strong social pressure to discourage
women from terminating their pregnancies.
294


B. SAME-SEX MARRIAGE

Legal recognition of same-sex marriage is another highly controversial
moral issue throughout the world. Notwithstanding this controversy, the evolution of public
opinion on the matter has been rapid, and resistance to change less effective, in comparison with
the relatively static stalemate on abortion. To be sure, discrimination against homosexual conduct
and homosexual partners was intensely present in legal and social practices until the beginning of
the twenty-first century. In the United States, for example, prior to the 1970s, the American
Psychiatric Association categorized homosexuality as a mental disorder.
295
In 1971, homosexual

292
According to the World Health Organization, 21.6 million unsafe abortions took place worldwide in 2008, almost
all in developing countries where the practice is illegal. See
http://www.who.int/reproductivehealth/topics/unsafe_abortion/en/index.html.
293
Indeed, even in countries where abortion is legal, politicians who oppose it have enacted laws that restrict public
funding, as has occurred in the United States and Canada. See e.g. Heather D. Boonstra, The Heart of the Matter:
Public Funding of Abortion for Poor Women in the United States, 10 GUTTMACHER POLICY REVIEW (2007),
available at http://www.guttmacher.org/pubs/gpr/10/1/gpr100112.html; Joanna N. Erdman, In the Back Alleys of
Health Care: Abortion, Equality, and Community in Canada, 56 EMORY L. J. 1093 (2007).
294
Dalia Sussman, Conditional Support Poll: Thirty Years After Roe vs. Wade, American Support Is Conditional,
ABC NEWS, available at http://abcnews.go.com/sections/us/dailynews/abortion_poll030122.html.
295
See MICHAEL J. ROSENFELD, THE AGE OF INDEPENDENCE: INTERRACIAL UNIONS, SAME-SEX UNIONS, AND THE
CHANGING AMERICAN FAMILY 176-177 (2007) (Until the 1950s, the consensus of psychiatrists and psycohologists
was that homosexuals were deeply disturbed people.).
62
sodomy was a crime in all but two American states.
296
As late as 1986, the Supreme Court upheld
state laws criminalizing intimate sexual behavior among homosexuals,
297
a decision that was only
overruled in 2003.
298
A major development came in 1993, when the Supreme Court of Hawaii
ruled that a statute limiting marriage to opposite-sex couples constituted sex discrimination.
299
As
a reaction against the courts ruling, from 1995 to 2005, 43 states adopted legislation prohibiting
same-sex marriage.
300
Ironically, this backlash had the consequence of unifying the LGBT
community in favor of same-sex marriage, which was opposed by radical militants who
considered it a concession by sexual minorities to conventional rites.
301
In 2004, the state of
Massachusetts was the first to legalize same-sex marriage, following a decision by the states
Supreme Judicial Court.
302
In recent years, homosexuality has increasingly become an accepted
lifestyle and there is a growing belief that its causes are predominantly biological. Such being the
case, to discriminate solely on grounds of sexual orientation would be the same as discriminating
Asians for their eyes, Africans for their color or Latin Americans for being misciginated.


296
WILLIAM N. ESKRIDGE & DARREN R. SPEDALE, GAY MARRIAGE: FOR BETTER AND FOR WORSE: WHAT WEVE
LEARNED FROM THE EVIDENCE 23 (2006) [hereinafter Eskridge]. The two states were Illinois and Connecticut.
297
Bowers v. Hardwick, 478 U.S. 186 (1986).
298
Lawrence v. Texas, 539 U.S. 558 (2003). Before Lawrence, in Romer v. Evans, 517 U.S. 620 (1996), the
Supreme Court struck down Amendment 2 to the Constitution of Colorado, which precluded all legislative,
executive, or judicial action at any level of state or local government designed to protect the status of persons based
on their "homosexual, lesbian or bisexual orientation, conduct, practices or relationships."
299
Baehr v. Lewin 74 Haw. 530, 852 P.2d 44 (1993), reconsideration and clarification granted in part, 74 Haw. 645,
852 P.2d 74 (1993).
300
Eskridge, supra note 296, at 20.
301
Id. See also MAN YEE KAREN LEE, EQUALITY, DIGNITY, AND SAME-SEX MARRIAGE: A RIGHTS DISAGREEMENT IN
DEMOCRATIC SOCIEITIES 11 (2010); and Nancy D. Polikoff, We Will Get What We Ask for: Why Legalizing Gay and
Lesbian Marriage Will Not "Dismantle the Legal Structure of Gender in Every Marriage, 79 Va. L. Rev. 1535, 1549
(1993).
302
Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003).
63
In this evolving context, it is no surprise that a number of countries have
legalized same-sex marriage, including Argentina, Belgium, Brazil, Canada, Iceland, the
Netherlands, Norway, Portugal, South Africa and Sweden. In several other countries, legislation
in the same direction has been proposed and discussions have advanced. It is true that some
countries have passed laws prohibiting same-sex marriage, as (surprisingly) did France.
303
In the
United States, as well, a 1996 federal statute known as Defense of Marriage Act (DOMA) defines
marriage as a legal union between one man and one woman as husband and wife. The Obama
administration, however, has announced that it will no longer defend the constitutionality of
DOMA, which has been challenged in several different lawsuits.
304
Moreover, several states have
passed legislation recognizing same-sex marriage, including Connecticut, Iowa, Massachusetts,
New Hampshire, Vermont and New York, as well as the District of Columbia. As with abortion,
there is fierce religious opposition to homosexual conduct and same-sex marriage. Based on
biblical passages read as condemnations of homosexual conduct,
305
many evangelical groups
have expressed strong disapproval and, within the Catholic Church, Popes John Paul II
306
and
Benedict XVI
307
have criticized countries for passing legislation protective of homosexuality.

Analysis of same-sex marriage in light of the idea of human dignity
presented in this paper is much less complex than such analysis as applied to abortion. Indeed, at
the intrinsic value level, there is a fundamental right in favor of legalizing same-sex marriage:

303
See http://www.lesoir.be/actualite/france/2011-01-28/le-conseil-constitutionnel-dit-non-au-mariage-homosexuel-
818228.php.
304
See Charlie Savage and Sheryl Gay Stolberg, In Shift, U.S. Says Marriage Act Blocks Gays Rights, N.Y. TIMES,
Feb. 23, 2011, available at http://www.nytimes.com/2011/02/24/us/24marriage.html.
305
Leviticus 18:22; Romans 1:26; and Romans 1:27.
306
U.S. Bishops Urge Constitutional Amendment to Protect Marriage, AMERICAN CATHOLIC ORG., available at
http://www.americancatholic.org/News/Homosexuality/default.asp, access in June 30, 2011.
64
equality under the law. To deny same-sex couples access to marriage and all the social and
legal consequences that it entails represents a form of discrimination based on sexual
orientation. There is no other argument stemming from intrinsic value that could be reasonably
employed to counter the right of equal protection and respect to which homosexuals are entitled.
As for autonomy, same-sex marriage involves two consenting adults who choose, without
coercion or manipulation, how to exercise their affection and sexuality. There is neither violation
of anyone elses autonomy nor harm to anyone that could justify a prohibition. Finally, at the
level of community value, one cannot fail to acknowledge that numerous segments of civil
society, and particularly religious groups, disapprove of homosexual behavior and same-sex
marriage. But to deny the right of gay couples to get married would be an unwarranted restriction
of their autonomy on behalf of either improper moralism or tyranny of the majority. First, there is
a fundamental right involved, whether the right to equality or to privacy (freedom of choice). If
this were not the case, the undeniable fact is that there is no harm to third parties or to ones self
in question here. And finally, one can no longer find a strong level of societal consensus against
same-sex marriage in a world where, at least in most Western societies, homosexuality is largely
accepted. Of course, anyone has the right to advocate against same-sex marriage and try to
convince people to abstain from participation.
308
But that is different than asking the state not to
recognize a legitimate exercise of personal autonomy by free and equal citizens.

C. ASSISTED SUICIDE


307
Michael Paulson, Pope Says Gay Unions Are False, THE BOSTON GLOBE, June 7, 2005.
308
The fact that there is not a prohibition or a potential use of state coercion does not oblige people with a moral
divergence to remain silent. See Hart, supra note 264, at 76.
65
Assisted suicide is the act by which an individual brings about his or her
own death with the assistance of someone else. The debate on this matter involves, as a general
rule, physician-assisted suicide, which occurs when a doctor provides the necessary information
and means, such as drugs or equipments, but the patient performs the act. Discussion of assisted
suicide usually assumes as will be assumed here that the relevant individuals are terminally ill
and enduring great pain and suffering. There is strong opposition to assisted suicide by most
religions, and particularly by the Catholic Church, which considers suicide to be morally wrong.
However, although the typical conflict between secular humanists and religious believers is also
present here, there are some subtleties that provide unusual nuance to this debate. For one, the
Hippocratic Oath, still taken by doctors in many countries, directly addresses the matter by
stating unambiguously: I will not give a lethal drug to anyone if I am asked, nor will I advise
such a plan.
309
Furthermore, there is always the concern that pressure from family or health
plans could compromise the free and informed consent of the patient. Thus, unlike abortion and
same-sex marriage (or some recognized form of gay partnership), which are allowed in most
developed countries, physician-assisted suicide is still generally illegal. In Europe, as mentioned
earlier, the European Court of Human Rights decided, in Pretty v. United Kingdom,
310
that there
is no fundamental right to assisted suicide.

The Supreme Court of Canada adopted the same outcome in declaring the
constitutionality of Section 241 (b) of the Criminal Code, which criminalized assistance of
suicide.
311
In a 5 to 4 decision, the Court held: (1) the state interest in protecting life and the

309
"The Hippocratic Oath". Translated by Michael North, National Library of Medicine, National Institutes of
Health. Available at http://www.nlm.nih.gov/hmd/greek/greek_oath.html.
310
See supra, note 83.
311
See supra, note 50.
66
vulnerable should prevail over claims of personal autonomy, physical and psychological integrity
and human dignity; (2) the cruel and unusual punishment clause did not apply; and (3) the
prohibition of assisted suicide, even if an infringement of equality rights, was justified by
substantial legislative objective and met the proportionality test.
312
In addition, the majority
asserted that it was the role of Parliament and not of the Court to deal with the question of
assisted suicide.
313
The dissenting Justices strongly argued that forcing an incapacitated
terminally-ill patient to have a dreadful, painful death was an affront to human dignity and that
there was no difference between refusing treatment and assisted suicide,
314
that there was an
infringement of the right to equality in preventing persons physically unable to end their lives,
315

and that fear of abuse was not sufficient to override appellants entitlement to end her life.
316




A handful of countries have legalized physician-assisted suicide, including
Belgium, Colombia, Luxembourg, the Netherlands and Switzerland. In the United States, where
state bans on physician-assisted suicide have been upheld by the Supreme Court,
317
three states
have legalized assisted suicide for people who have a very limited amount of time to live.
Oregons Death with Dignity Act requires the diagnosis of a terminal illness that will, within
reasonable medical judgment, produce death within six months.
318
The Washington Death with
Dignity Act, enacted in 2009, also has a provision that requires patients to have less than six

312
Id.
313
Id.
314
Id. (Cory, J., dissenting).
315
Id. (Lamer, C.J., dissenting).
316
Id. (LHereux-Dub and McLachlin, JJ., dissenting).
317
See Vacco v. Quill, 521 U.S. 793 (1997) and Washington v. Glucksberg, 421 U.S. 702 (1997).
318
ORS 127.505. Available at
http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Pages/ors.aspx.
67
months to live in order to fall within the act.
319
The most recent American jurisdiction to adopt
an assisted suicide regime was Montana, which acted through its state supreme court to find
immunity from prosecution for doctors who helped terminally ill patients die.
320
The state
legislature, however, has declined to pass a bill that fully describes the limits of any right to die
and has instead left the issue in legal limbo.
321
The rules of these American states are stricter
than those of other countries. In the Netherlands, for example, the standard is more relaxed, and
people facing the prospect of unbearable suffering with no prospect of improvement may
perform assisted suicide, regardless of the exact time diagnosis.
322
Similarly, under Belgian law,
patients suffering from constant and unbearable physical or psychological pains resulting from
an accident or incurable illness are legally allowed to request assisted suicide from their
physicians.
323


Finally, it is necessary to examine the relationship between assisted suicide
and each of the three components of the concept of human dignity described in this article. As for
intrinsic value, the fundamental right to life would naturally be an obstacle for legalization of
assisted suicide. It is difficult to find a right to die that could be invoked to counter the right to
life. Death is inevitability and not a choice. But there certainly is a right to physical and mental
integrity, which is also associated with the inherent value of every human being.
324
The fact is

319
RCW 70.245, http://www.doh.wa.gov/dwda/.
320
Kirk Johnson, Montana Ruling Bolsters Doctor-Assisted Suicide, N.Y. TIMES, Dec. 31, 2009, available at
http://www.nytimes.com/2010/01/01/us/01suicide.html.
321
Montana lawmakers put physician-assisted suicide issue on hold, BILLINGS GAZETTE, Feb. 20, 2011, available at
http://billingsgazette.com/news/state-and-regional/montana/article_a35791fe-3d00-11e0-bff3-001cc4c002e0.html.
322
http://www.aph.gov.au/library/pubs/rn/2000-01/01rn31.htm.
323
Belgium legalizes euthanasia, BBC NEWS, May 16, 2002, available at
http://news.bbc.co.uk/2/hi/europe/1992018.stm.
324
I do not think equal protection plays a role in this scenario.
68
that contemporary medical technology has the capacity to transform the process of dying into a
journey that can last longer than would otherwise occur and be more painful than necessary. Each
individual, thus, should have the right to die with dignity, and should not be compelled to suffer
for an extended period of time without the ability to function normally. In a rather paradoxical
way, at the level of intrinsic value, the right to life and the right to integrity can oppose each
other.

Regarding autonomy, preserving it is one of the integral values
surrounding the debate about physician-assisted suicide, along with alleviating suffering and
maintaining community.
325
Autonomy generally supports the idea that a competent person has the
right to choose to die, under certain circumstances, if after thoughtful reflection she finds that
unrelieved suffering outweighs the value of continued life.
326
And provided the physician
agrees to do the procedure, no one elses autonomy is in question. Community value, however, is
the most complex discussion in this analysis. To be clear, I do not think the community and state
should have the right to impose their moralist or paternalist conceptions on someone who is
hopelessly suffering and close to the end of life. However, they do have the authority and the
duty to establish some safeguards in order to make sure that each patients autonomy is properly
exercised. In fact, there is a real risk that legalization of assisted suicide could put pressure on the
elderly and those with terminal illness to choose death in order to reduce the burden on their
families. In such scenarios, instead of the choice to die being an embodiment of autonomy, it
becomes a product of the coercion of vulnerable and marginalized individuals, reducing the value

325
See Joshua Hauser, Beyond Jack Kevorkian, HARVARD MED. ALUMNI BULL. 2000, available at
http://harvardmedicine.hms.harvard.edu/doctoring/medical%20ethics/kevorkian.php.
326
Peter Rogatz, The Virtues of Physician-Assisted Suicide, THE HUMANIST, Nov/Dec 2001, available at
http://www.thehumanist.org/humanist/articles/rogatz.htm.
69
of their lives and dignity.
327
For these reasons, individuals who are terminally ill and enduring
great suffering, as well as those who are in persistent vegetative states,
328
should have the right to
assisted suicide, but legislation must be cautiously crafted to ensure that the morally acceptable
idea of dying with dignity does not become a recipe for elder abuse.
329
These pertinent
concerns regarding the protection of vulnerable people, however, do not affect the central idea
defended in this topic: when two fundamental rights of the same individual are in conflict, it is
reasonable and desirable for the state to value personal autonomy.
330
At the bottom line, the state
should respect a persons choices when it is her own tragedy that is at stake.
331


V. CONCLUSION

A. THE ONE AND THE MANY

Early Greek philosophy was centered round the quest for an ultimate
principle a common substratum to all things and a unity underlying diversity
332
a problem

327
The same concerns are present in Nussbaum, supra note 194, at 373, as well as note 373 and accompanying text.
See also RONALD DWORKIN, LIFES DOMINION 190 (1994) [hereinafter Dworkin, Dominion].
328
The issue of consent when there is an incompetent person involved entails a great deal of complexity related to
the proof of the patients actual wish, the determination of what patient would have wanted and identification of what
is in the persons best interests. Some of these issues were dealt with in Cruzan v. Director, Missouri Dept. of Health,
497 U.S. 261 (1990), which affirmed a decision that did not permit the patients parents to refuse life-supporting
treatment on her behalf of their daughter, absent a clear and convincing evidence of her desire. For a criticism of
this decision, see Dworkin, Dominion, supra note 504, at 196-98. For a deeper discussion on consent, see generally
DERYCK BEYLEVELD AND ROGER BROWNSWORD, CONSENT IN THE LAW (2007).
329
Margaret K. Dore, Physician-Assisted Suicide: A Recipe for Elder Abuse and the Illusion of Personal Choice,
VERMONT BAR J. (2011).
330
Advocating an attitude of restraint from the state and community, see Dworkin, Dominion, supra note 327, at 239.
331
LORENZO ZUCCA, CONSTITUTIONAL DILEMMAS 169 (2008), access through Oxford Scholarship Online
(http://www.oxfordscholarship.com.ezp-
prod1.hul.harvard.edu/oso/private/content/law/9780199552184/p045.html#acprof-9780199552184-chapter-7).
332
Copleston, supra note 173, vol. I, at 13-80.
70
known as the one and the many.
333
If such a concept were to be applied to democratic societies,
human dignity would be a leading candidate for the greatest principle that is in the essence of all
things. It is true, however, that historical and cultural circumstances in distinct parts of the world
decisively affect the meaning and scope of human dignity. Intuitively, an idea that varies with
politics and geography is too elusive to become a workable domestic and transnational legal
concept. The ambitious and risky purpose of this paper was to identify the legal nature of the idea
of human dignity and to give it a minimum content, from which predictable legal consequences
can be deduced, applicable throughout the world. It is an effort to find common ground and, at
the least, common terminology. With that in mind, human dignity is characterized as a
fundamental value that is at the foundation of human rights, as well as a legal principle that (1)
provides part of the core meaning of fundamental rights and (2) functions as an interpretive
principle, particularly when there are gaps, ambiguities, and clashes among rights or among
rights and collective goals as well as moral disagreements. To be true, the principle of human
dignity, as elaborated here, attempts to supply a roadmap to structure legal reasoning in hard
cases, but it does not, of course, solve or suppress moral disagreements, an unattainable task.

After establishing that human dignity should be regarded as a legal
principle and not as a freestanding fundamental right I propose three elements as its minimum
content and derive a set of rights and implications from each. For legal purposes, human dignity
can be divided in three components: intrinsic value, which identifies the special status of human
beings in the world; autonomy, which expresses the right of every person, as a moral being and as
a free and equal individual, to make decisions and pursue his own idea of good life; and

333
Id. at 76.
71
community value, conventionally defined as the legitimate state and social interference in the
determination of the boundaries of personal autonomy. This communitarian dimension of human
dignity must be under permanent and close scrutiny, due to the risks of paternalism and moralism
affecting legitimate personal choices and rights. In structuring legal reasoning in more complex,
divisive cases, it is useful to identify and discuss the relevant questions that arise in each of the
three levels of analysis, and therefore provide more transparency and accountability to the
justification and choices made by courts or other interpreters.

B. EPILOGUE: EQUALS, NOBLES AND GODS

As we have seen, dignity, in one line of development that goes far back in
time, was a concept associated with rank: the personal status of certain political or social
positions. Dignity, thus, was tied up with honor, and entitled some individuals to special
treatment and privileges. In this sense, dignity presupposed a hierarchical society and denoted
nobility, aristocracy, and the superior condition of some persons over others. Over the centuries,
however, with the impulse of religion, philosophy and sound politics, a different idea of dignity
has developed human dignity which protects the equal intrinsic worth of all human beings and
the special place of humanity in the universe. Such is the concept explored in this article, which is
at the foundation of human rights, and particularly the rights of freedom and equal protection.
These ideas are now consolidated in constitutional democracies, and some higher aspirations
have been cultivated. In a time to come, with a few drops of idealism and political determination,
human dignity may become the source of a high rank and distinction that is accorded to
everyone: the maximum attainable level of rights, respect and personal achievement. All persons
72
will be nobles.
334
Or better yet, as in the lyrics of Les Miserables, every man will be a king.
335

And some time in the future, given that desire and ambition are unlimited, men will seek to
become Gods.
336



334
This idea is defended in Jeremy Waldron, Dignity, Rank, and Rights: The 2009 Tanner Lectures at UC Berkley.
PUBLIC LAW & LEGAL THEORY RESEARCH PAPER SERIES, WORKING PAPER NO. 09-50, at 29, September 2009.
Waldron gave credit for the idea to Gregory Vlastos, Justice and Equality, in THEORIES OF RIGHTS 41 (Jeremy
Waldron, ed. 1984).
335
See Alain Boublil and Herbert Kretzmer, One Day More:
One day to a new beginning
Raise the flag of freedom high!
Every man will be a king
Every man will be a king
There's a new world for the winning
There's a new world to be won
Do you hear the people sing?
336
This idea is in JEAN-PAUL SARTRE, THE BEING AND THE NOTHINGNESS, 735, 764 (Hazel E. Barnes, trans. 1956);
and also in JEAN-PAUL SARTRE, EXISTENTIALISM AS HUMANISM 63 (1973) (The best way to conceive of the
fundamental project of human reality is to say that man is the being whose project is to be God). The subject is
further explored in ROBERTO MANGABEIRA UNGER, THE SELF AWAKENED: PRAGMATISM UNBOUND 256 (2007). For
Unger, the divinization project is impossible, but there are ways by which we can become more godlike.